                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4334
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Candice A. Davis

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 22, 2017
                            Filed: November 16, 2017
                                  ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

     Candice A. Davis pled guilty to wire fraud, use of unauthorized access devices,
and aggravated identity theft in violation of 18 U.S.C. §§ 1343, 1029(a)(2),
1029(b)(1), 1029(c)(1)(A)(i), and 1028A(a)(1). The district court1 sentenced her to

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       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.
75 months’ imprisonment. Davis appeals. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.

       In her plea agreement, Davis stipulated: “Beginning on or about November 1,
2013 and continuing to on or about December 1, 2015, in the Eastern District of
Missouri,” Davis and her co-defendant, Stacey Wilson, “recruited individuals to open
checking accounts at U.S. Bank with nominal amounts of money.” “They also
recruited other individuals who had existing checking accounts with debit cards at
other federally insured institutions.” In total, Davis and Wilson “recruited more than
15 individuals to open accounts” or “provide their own bank account information.”
The recruited individuals provided Davis and Wilson “with their debit cards and
checks issued on their accounts.” Using those checks (and other stolen ones), Davis
and Wilson drafted and deposited “checks in amounts from $195.00 to $2,300.00.”
They then withdrew the deposited funds through ATMs, counter withdrawals, and
debit card purchases. “As a result of the scheme, Wilson, Davis, and others obtained,
and attempted to obtain, more than $79,000.00 in funds . . . between September 1,
2013 and December 1, 2015.”

      At sentencing, Davis objected to the presentence investigation report (PSR) and
the court’s enhancements. She also requested a reduction for acceptance of
responsibility.

                                          I.

      Davis contends the district court erred in overruling her objections to the PSR.
“For purposes of sentencing,” this court reviews factual findings for “clear error,
applying the preponderance-of-the-evidence standard.” United States v. Atterberry,
775 F.3d 1085, 1090 (8th Cir. 2015). A district court cannot base a sentence upon
disputed, unproven allegations in the PSR. See United States v. Richey, 758 F.3d
999, 1002 (8th Cir. 2014). “A presentence report is not evidence and is not a legally

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sufficient basis for making findings on contested issues of material fact.” Id.
(emphasis added) (internal quotation marks omitted).

       In her written objections to the PSR, Davis contested the statement she
recruited more than 50 participants. The government then produced a list of 51
individuals who provided their account information to Davis and Wilson. At
sentencing, Davis did not raise the objection, but she does now. This court need not
determine whether she properly preserved the objection because the issue is not
material to any sentencing enhancement. United States v. Mitchell, 825 F.3d 422,
425 (8th Cir. 2016) (holding the district court must hold a hearing “when a defendant
disputes material facts in his PSR”).

      Three sections of the PSR reference “fifty individuals” or “fifty participants”:

      13. As part of the fraudulent scheme, Stacey Wilson and Candice A.
      Davis recruited approximately fifty individuals to open checking and
      savings accounts with U.S. Bank using fraudulent and stolen checks for
      the initial deposits. Investigation determined one of the victims was
      mentally disabled (B.J.) and several others were homeless. Wilson and
      Davis drove the recruited individuals to onsite and instore U.S. Bank
      branches as these locations offered instant debit cards and checks. All
      debit cards and checks were subsequently provided to the defendants.
      Investigation determined the recruited individuals received a minimal
      payment for setting up the accounts and depositing the fraudulent or
      stolen checks into the accounts for the defendants.

      40. Specific Offense Characteristics: As the offense involved
      sophisticated means, two-levels are added. USSG §2B1.1(b)(10)(C).
      Specifically, the defendants recruited more than fifty participants, was
      repeated five times, and occurred for more than one year.

      42. Adjustment for Role in the Offense: The defendant was a
      manager or supervisor (but not an organizer or leader) and the criminal
      activity involved five or more participants or was otherwise extensive;

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      therefore, three levels are added. USSG §3B1.1(b). In the instant
      offense, Stacey Wilson brought Candice into the criminal organization.
      Throughout the offense, Davis helped Wilson recruit approximately fifty
      individuals to open checking and savings accounts with U.S. Bank
      accounts. After the accounts were created, the defendants deposited
      fraudulent and stolen checks into the bank accounts and withdrew the
      inflated funds prior to the accounts being closed. [The defendant and
      government disagree[ ] [about] this enhancement].

       The reference to “fifty individuals” in paragraphs 13 and 42 is not material to
the § 3B1.1(b) enhancement because the enhancement requires only that the
defendant be an organizer or leader of a criminal activity that involves “five or more
participants.” Davis stipulated it involved 15 participants. The reference to “fifty
participants” in paragraph 40 is not material to the § 2Bl.l(b)(10)(C) enhancement
because Davis stipulated to the enhancement in the plea agreement:

      The parties agree that 2 levels should be added pursuant to Section
      2Bl.l(b)(10)(C) because the offense otherwise involved sophisticated
      means and the defendant intentionally engaged in or caused the conduct
      constituting sophisticated means.

      The PSR’s statement that the scheme involved more than 50 participants was
not material to any enhancement. Any error in overruling Davis’s objection was
therefore harmless.

      Davis also objects to the finding that her conduct began before 2015. Agent
Anne Kriedt, the government’s witness and a U.S. postal inspector, testified about
Davis’s involvement in 2013 and 2014:

      Q. Okay. Let me first turn your attention to some of the original
      investigation, however. In the original investigation back in — for
      conduct that had occurred in 2013, did you have information of Ms.
      Davis’ involvement at that time?

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A. Yes.

Q. Could you, please, tell the Court about that?

A. Yes. Stacey Wilson was at a Schnuck’s in Maryland Heights,
Missouri, attempting to open a bank — or another account in somebody
else’s name. The police were called. And in the video surveillance,
there’s a female and a small child and Stacey Wilson all in the video.
The police walk up and they — or Candice Davis identifies herself as
Candice Davis and then they discover Stacey Wilson was posing as
another person to open the account.

Q. Okay. So at the time that she was seen in Maryland Heights, there
were no charges that were laid against Ms. Davis as a result of that
conduct. Is that correct?

A. Correct.

Q. But she was with Mr. Wilson as he was using a name other than his
own in order to open an account through which fraud would be
generated.

A That’s correct.

Q. And between 2013 and 2014, is there evidence of Ms. Davis being
involved in some form or fashion in this conspiracy?

A. Yes.

Q. Could you please tell the Court about that?

A. Candice Davis is seen at an ATM drive-up at a US Bank depositing
a check on a closed account, and she’s in her vehicle that was used back
in 2013.

Q. And this actually occurred on May 5th, 2014, at a Jennings US Bank
branch drive-up. Is that correct?

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      A. Correct.

      Q. And at that time she deposited a check in the amount of $305 into the
      account of someone with the initials of G.J. Is that correct?

      A. Correct.

      Q. And you were able to identify, through the assistance of US Bank,
      that G.J.’s account was used — was opened in order to be used
      fraudulently. Is that correct?

      A. Correct.

      Q. And Ms. Davis was identified through surveillance photos. Is that
      correct?

      A. Yes.

                                        ....

      Q. And between 2013 and 2014, other than the two occasions that you
      identified, was either Defendant identified with Stacey Wilson as he was
      conducting fraud or her vehicle was used as he was conducting the
      criminal activity?

      A. That’s correct.

      Q. Is that correct in both cases or just one or the other?

      A. Both cases.

      Davis objects to the sufficiency of Agent Kriedt’s testimony because she was
not part of the investigation in 2013. However, as Agent Kriedt testified, when she
became involved in 2015, she received all materials and reports since 2013. Her
testimony shows she was familiar with the events beginning in 2013. See United
States v. Replogle, 628 F.3d 1026, 1031 (8th Cir. 2011) (holding that a sentencing

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court “may consider any information with sufficient indicia of reliability to support
its probable accuracy”). The district court did not err in finding Davis was involved
before 2015. United States v. Mohr, 772 F.3d 1143, 1146 (8th Cir. 2014) (“A district
court’s findings regarding witness credibility are entitled to ‘particularly great
deference’ and a district court’s decision to credit a witness’s testimony ‘can almost
never be a clear error unless there is extrinsic evidence that contradicts the witness’s
story.’”), quoting United States v. Wright, 739 F.3d 1160, 1166-67 (8th Cir. 2014).

      The district court properly overruled Davis’s objections to the PSR.

                                          II.

      Davis believes the district court erred in finding she was a manager or
supervisor of a criminal activity involving five or more participants. This court
reviews “a district court’s factual findings regarding whether a leadership
enhancement is warranted for clear error and its legal conclusions de novo.” United
States v. Musa, 830 F.3d 786, 788 (8th Cir. 2016). The government must prove the
applicability of the enhancement by a preponderance of the evidence. Id.

       “Section 3B1.1(b) of the Sentencing Guidelines provides a three-level
enhancement ‘[i]f the defendant was a manager or supervisor . . . and the criminal
activity involved five or more participants.’” United States v. Mannings, 850 F.3d
404, 409 (8th Cir. 2017), quoting U.S.S.G. § 3B1.1(b). Applying the enhancement,
the court considers:

      the exercise of decision making authority, the nature of participation in
      the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and scope
      of the illegal activity, and the degree of control and authority exercised
      over others.

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U.S.S.G. § 3B1.1 cmt. n.4. This court has “never construed the terms . . . so narrowly
as to restrict application of the enhancement solely to the organizer who first
instigated the criminal activity.” United States v. Irlmeier, 750 F.3d 759, 764 (8th
Cir. 2014). “[T]he defendant need not be the only leader or organizer, and the
defendant need not lead or organize all of the participants.” Id. In fact, this court has
“defined the terms ‘manager’ and ‘supervisor’ quite liberally, holding that [a]
defendant can be subject to this enhancement for having managed or supervised only
one other participant in the criminal conspiracy.” Mannings, 850 F.3d at 409
(internal quotation marks omitted). “The key factors in determining management or
supervisory authority are control over participants and organization of the criminal
activity.” Id.

       At sentencing, Agent Kriedt testified that she interviewed a witness B.J. who
identified Davis as the person who recruited him into the scheme by offering to pay
him for depositing checks. Davis contends the court should not have relied on this
testimony because B.J. has the mental capacity of a second-grader and previously said
Davis’s coconspirator recruited him. Agent Kriedt acknowledged that B.J.’s mother
said “he has the mental capacity of a second grader or a nine-year-old.” However,
Agent Kriedt testified that his “recitation of the facts” was not consistent with that of
a second-grader. She also acknowledged that she originally thought B.J. was
recruited by Wilson. But she testified that B.J. corrected this misunderstanding in
their most recent conversation. This testimony was sufficient to show Davis
exercised control over at least one participant. See id.; United States v. Valencia, 829
F.3d 1007, 1012 (8th Cir. 2016) (affirming enhancement where the defendant directed
members of the organization during at least one drug shipment). Davis admitted the
scheme involved more than 15 participants. The district court did not err in applying
the three-level enhancement under § 3B1.1(b).




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                                          III.

        Davis argues the district court erred in denying a two-level reduction for
acceptance of responsibility. U.S.S.G. § 3E1.1(a) provides for a two- level reduction
if the defendant “clearly demonstrates acceptance of responsibility for [her] offense.”
U.S.S.G. § 3E1.1(a). This court reviews the “denial of an acceptance of
responsibility reduction for clear error and will reverse only if it is so clearly
erroneous as to be without foundation.” United States v. Jensen, 834 F.3d 895, 901
(8th Cir. 2016). “[A] defendant who enters a guilty plea is not entitled to credit for
acceptance of responsibility as a matter of right.” United States v. Torres-Rivas, 825
F.3d 483, 486 (8th Cir. 2016). “Because ‘[t]he sentencing judge is in a unique
position to evaluate a defendant’s acceptance of responsibility[,] . . . the
determination of the sentencing judge is entitled to great deference on review.’”
United States v. Fischer, 551 F.3d 751, 754 (8th Cir. 2008), quoting Peters v. United
States, 464 F.3d 811, 812 (8th Cir. 2006). The defendant bears the burden of proving
her entitlement to the reduction. U.S.S.G. § 3E1.1, cmt. n.2.

       Davis denied much of the conduct relevant to her convictions. She claimed:
(1) she was not involved in the criminal activity until 2015; (2) she did not recruit or
direct anyone; (3) the offenses did not involve sophisticated means; and (4) she and
her coconspirator did not recruit at least 50 individuals. The court found to the
contrary. Given her multiple objections to the PSR, the district court did not err in
denying a reduction for acceptance of responsibility. See United States v. Mahone,
688 F.3d 907, 911 (8th Cir. 2012) (affirming denial of § 3E1.1(a) enhancement
where the defendant “enter[ed] a plea of guilty and admit[ted] what he needed to
admit to get his plea accepted and did not go beyond that” and then later “argued and
tried to explain [and] denied things that simply were true”); United States v. Jones,
539 F.3d 895, 897 (8th Cir. 2008) (affirming denial of enhancement where the district
court found “frivolous denial[s] of relevant conduct”); United States v. Erhart, 415
F.3d 965, 971 (8th Cir. 2005) (holding that a “defendant is entitled to an acceptance

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of responsibility reduction when the defendant has shown a recognition and
affirmative acceptance of responsibility for relevant conduct”).

                               *******
     The judgment is affirmed.
                    ______________________________




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