                   Case: 12-11879          Date Filed: 11/19/2012   Page: 1 of 10

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-11879
                                         Non-Argument Calendar
                                       ________________________

                               D.C. Docket No. 3:11-cr-00069-MCR-3



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                              versus

JANE M. MCDONALD,
a.k.a. Janie McDonald,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                      ________________________

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

                                           (November 19, 2012)

Before TJOFLAT, PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:
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      Jane M. McDonald appeals her 15-month sentence for conspiracy to commit

wire fraud and/or mail fraud, and actual mail fraud. McDonald pled guilty to these

charges stemming from a scheme to purchase and finance a $2 million

condominium through a series of fraudulent financial transactions. Since

McDonald’s co-defendant and boyfriend at the time, Jackie Fair, was a major

orchestrator of these transactions, McDonald argues that her sentence required a

reduction for her minor or minimal role. McDonald urges this position even

though her 15-month sentence already represents a significant downward variance

in sentencing.

                                         I.

      The federal grand jury returned an indictment charging McDonald, Fair, and

Chris Cadenhead with conspiracy to commit wire and/or mail fraud and actual mail

fraud in violation of 18 U.S.C. §§ 1341, 1343, and 1349 (Counts Three and Four).

In addition to these charges against McDonald, the indictment charged Cadenhead,

Fair, and Randolph Branham with conspiracy to defraud a financial institution

regulated by the Farm Credit Administration (FCA), in violation of 18 U.S.C. §§

1344 and 1349 (Count One), and bribing an officer, director, and employee of a

financial institution regulated by the FCA in connection with a loan in violation of

18 U.S.C. § 215(a)(1) (Count Two).




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      When she pled guilty, McDonald admitted that she and Fair sought to

purchase a $2 million penthouse condominium in Destin, Florida, as a personal

residence. Fair had a prior federal criminal conviction and a questionable credit

history. McDonald did not have enough money to buy the condominium. To

finance the condo, the pair got several loans. By all accounts, Fair arranged these

loans with various lenders, while McDonald signed the mortgage documents.

Along the way, McDonald: 1) signed a number of promissory notes she could not

pay; 2) failed to disclose $700,000 of debt and falsely listed her income as nearly

$9,000 per month higher than her actual income on a loan application to Genisys

Financial Corporation; 3) failed to disclose $700,000 in debt, falsely claimed to

own 100,000 shares of Morgan Creek Energy stock worth $500,000, and falsely

listed her income at $60,000 a month on a loan application to America’s Wholesale

Lender processed by New Horizon Financial; and 4) failed to make any payments

on the loan she got, also by way of a false application, from America’s Wholesale

Lender.

      McDonald’s Presentence Investigation Report (PSI) did not recommend a

minor role or minimal role reduction. Despite this, at sentencing her lawyer argued

that she had fallen prey to the machinations of a skilled con artist and noted that

“[t]here was no intended loss; Ms. McDonald lived in the property and paid down

the mortgage as scheduled until it became impossible.” Supporting letters


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advanced the theory that McDonald was “honest to a fault” and that Fair had used

her as a pawn in a broad scheme. Indeed, it is true that Counts One and Two of the

indictment involved bribes and kickbacks with lenders that McDonald knew

nothing about. The Government countered these arguments by telling the court

that it was McDonald’s desire to lead the “big life” which led her to go along with

the scheme and that “if she didn’t commit the crimes that she did, then this crime

would never have gotten to the tune of a $2 million loan being written by Bank of

America.”

      The court refused to adjust McDonald’s guideline calculation downward. “I

agree with Ms. McDonald that she was caught up in something and got carried

away,” the court explained, but found “that the . . . conduct that she engaged in in

Counts Three and Four was central to the fraud that was committed in those counts

as regards to those loans and was instrumental.” The Court did increase Fair’s

offense level by two levels due to his major role in the fraud.

      While the court did not lower McDonald’s offense level, it did impose a 15

month sentence, which was a downward variance from the guideline range of 27–

33 months. The court referenced McDonald’s lack of criminal history and the lack

of a need for deterrence in making this variance. McDonald appeals this sentence

in light of the court’s failure to give her a minor or minimal role reduction.

                                          II.


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      A district court must properly and correctly calculate the applicable

guideline range. Gall v. United States, 552 U.S. 38, 49-50, 128 S. Ct. 586, 596-97

(2007). “In reviewing a claim under the Sentencing Guidelines, [we review] the

district court’s findings of fact for clear error and its interpretation of the

Guidelines de novo.” United States v. Daniels, 685 F.3d 1237, 1244 (11th Cir.

2012). The district court’s determination of a defendant’s role in the offense is a

factual question which we review for clear error. United States v. Rodriguez De

Varon, 175 F.3d 930, 936-37 (11th Cir. 1999) (en banc). “[W]e acknowledge that

a similar fact pattern may on occasion give rise to two reasonable and different

constructions,” and for that reason “it will be rare for an appellate court to

conclude that the sentencing court’s [relative role] determination is clearly

erroneous.” Id. at 945.

      “The proponent of the downward adjustment . . . always bears the burden of

proving a mitigating role in the offense by a preponderance of the evidence.” Id. at

939. Section 3B1.2 of the Sentencing Guidelines provides for a reduction of the

base offense level where a defendant was a “minor participant” or a “minimal

participant” in criminal activity, by two or four levels respectively. U.S.S.G. §

3B1.2. A “minor participant” is one “who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2,

comment. (n.5). A “minimal participant” is one who “lack[s] of knowledge or


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understanding of the scope and structure of the enterprise and of the activities of

others.” U.S.S.G. § 3B1.2, comment. (n.4).



      Our precedent provides:

      In determining whether a ‘minor participant’ reduction applies, we
      have said the district court must measure the defendant’s role against
      her relevant conduct, that is, the conduct for which she has been held
      accountable under U.S.S.G. § 1B1.3. In addition, where the record
      evidence is sufficient, the district court may also measure the
      defendant’s conduct against that of other participants in the criminal
      scheme attributed to the defendant.

United States v. Keen, 676 F.3d 981, 997 (11th Cir. 2012) pet. for cert. filed, (U.S.

Aug. 1, 2012) (Nos. 12-5595, 12A14) (quotation marks omitted) (emphasis added).

The district court need not make any specific findings other than its ultimate

determination of the defendant’s role in the offense. Rodriguez De Varon, 175

F.3d at 939-40.

      In conspiracy and fraud cases, relevant conduct by which we measure the

defendant’s role includes acts and omissions: (1) by the defendant; (2) by others in

furtherance of jointly undertaken criminal activity, if they are reasonably

foreseeable; and (3) that were part of the same course of conduct or common

scheme as the offense of conviction. U.S.S.G. § 1B1.3(a)(1)-(2). A defendant

cannot prove that she played a minor role in the relevant conduct attributed to her

offense by pointing to a broader criminal conspiracy for which she was not held


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accountable. De Varon, 175 F.3d at 941. The purpose of restricting the analysis to

solely the conduct for which the defendant is held accountable is “to punish

similarly situated defendants in a like-minded way.” Id.

      Even where a defendant played a smaller role in a conspiracy than other

co-conspirators, a defendant still may not be entitled to a role reduction if she

played a significant role in the conduct of the relevant offense. Keen, 676 F.3d at

997. See also, United States v. Zaccardi, 924 F.2d 201, 203 (11th Cir. 1991) (“It is

entirely possible for conspiracies to exist in which there are no minor participants .

. . . [T]he fact that a participant defendant may be the least culpable among those

who are actually named as defendants does not establish that he performed a minor

role in the conspiracy.”).

                                         III.

      McDonald argues that the district court “clearly erred” in declining to

impose a minor role or minimal role reduction because it failed to compare her role

to Fair’s overarching role.

      First, McDonald asserts in a conclusory fashion that she played a minor role

because Fair played a major role. But McDonald’s claim that if the court

determined Fair’s role as “major and controlling” then “[t]he flip side of that is that

McDonald’s role was minor in relation to his” is not dispositive of whether

McDonald deserved a downward adjustment. The Government conceded that


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Fair’s role was aggravated and also that without major fraud perpetrated by Fair,

the fraud for which McDonald was convicted might not have happened.

Nevertheless, the scope of Fair’s culpable conduct does not limit that for which

McDonald is responsible.

      Our inquiry is properly focused on McDonald’s role as compared to the

relevant conduct for which she was held accountable. De Varon, 175 F.3d at 941.

McDonald was held accountable for conspiracy to commit mail fraud and mail

fraud stemming from her false loan applications. The court found that without her

fraudulent actions the loans would not have been approved. Thus, analogizing to

Keen, McDonald’s role was “hardly incongruent with the conduct for which [she]

was held accountable.” 676 F.3d at 997.

      Second, McDonald argues that the district court erred because it did not

explicitly compare her role to Fair’s. But this conflates what a court must do—

compare a defendant’s actions to the relevant conduct for which she is held

accountable—with what it may do—compare the defendant’s actions to the

conduct of co-defendants. Id. As this Court held in De Varon, “the district court

may also measure the defendant’s culpability in comparison to that of other

participants” but, importantly “[t]he fact that a defendant’s role may be less than

that of other participants engaged in the relevant conduct may not be dispositive of

role in the offense, since it is possible that none are minor or minimal participants.”


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175 F.3d at 944. Beyond that, the requirement McDonald seeks—that the court

have made a comparison—goes explicitly against what the court need not do:

make any specific findings other than the role in the offense. Id. at 940. The

district court’s failure to make a specific comparison was not error, and McDonald

was not entitled to a role reduction simply on account of Fair’s greater role in the

broader criminal scheme.

      Finally, there is nothing to suggest that the trial court made clearly erroneous

findings of fact. McDonald admitted as a part of her guilty plea to engaging in a

number of false and fraudulent transactions, without which McDonald and Fair

would not have been able to secure the loan at issue in this case. McDonald cites

extensively to the finding of the PSI that “Jackie Fair is the most culpable

defendant in this conspiracy,” but ultimately the PSI concluded that McDonald’s

“conduct was instrumental in these offenses,” because “without the [her]

willingness to sign loan documents claiming her income as $38,000 per month in

January 2006, and $60,000 per month later in October 2006, the fraud would not

have occurred.” Thus, we must defer to the trial court’s finding that McDonald

was the “conduit” through which the fraud operated and defer to its judgment that




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McDonald did not deserve a minor role reduction for the commission of this

crime. 1

       Insofar as the trial court did not err in denying McDonald a minor role

reduction, neither did it err in denying her a reduction for a minimal role.

                                               IV.

       Finding that the trial court did not plainly err in sentencing, McDonald’s

sentence is

       AFFIRMED.




1
  McDonald’s initial brief argues that the district court “clearly erred by denying a role
reduction.” The Reply Brief raises for first time an argument that McDonald received a
“procedurally unreasonable sentence.” “The substantive reasonableness of a sentence is
reviewed for abuse of discretion in light of the totality of the circumstances.” Daniels, 685 F.3d
at 1244-45 (quotation marks omitted). But, “[p]arties must submit all issues on appeal in their
initial briefs” or they are waived. United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000).
For that reason, we have analyzed McDonald’s claims primarily under the standards set forth in
De Varon, and not in the two-step framework of the analysis of a procedurally unreasonable
sentence. In any event, because we find that the Guidelines range was not miscalculated, we find
no procedural error, nor is there anything in the record to suggest her 15-month sentence was
substantively unreasonable.

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