           Case: 14-11801   Date Filed: 02/05/2015   Page: 1 of 15




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11801
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:13-cr-80108-DTKH-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

BRANDON JEROME JAMES,

                                                          Defendant-Appellant.

                       ________________________

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

                            (February 5, 2015)

Before HULL, WILSON, and BLACK, Circuit Judges.

PER CURIAM:
              Case: 14-11801    Date Filed: 02/05/2015   Page: 2 of 15


      Brandon Jerome James appeals his 81-month total sentence after pleading

guilty to one count of conspiracy to steal money from the United States, in

violation of 18 U.S.C. § 371; one count of theft of government funds, in violation

of 18 U.S.C. § 641; and one count of aggravated identity theft, in violation of 18

U.S.C. § 1028A.

      Upon review of the record and after careful consideration of the parties’

briefs, we affirm.

                                         I.

      James was one of several individuals involved in a complex scheme to

defraud the United States Treasury using stolen names and social security

numbers. On August 31, 2012, police officers in Boca Raton, Florida stopped a

vehicle James was driving. Eric Quincy Fussell and Laron Lanece Larkin were

passengers. James and Fussell were arrested on outstanding warrants. Larkin was

arrested for loitering and prowling.

      The officer’s search of the vehicle incident to arrest revealed a Netspend

visa debit card that was wrapped in cardboard with the name, social security

number, date of birth, and address of another individual written on the cardboard in

Larkin’s purse. Officers also found, among other things, photocopied drivers

licenses and social security cards that belonged to unknown individuals. In

James’s wallet, officers located additional cardboard-wrapped debit cards with


                                          2
                Case: 14-11801     Date Filed: 02/05/2015   Page: 3 of 15


personal information written on them. A complete search of the vehicle revealed

more cardboard-wrapped debit cards, $4,700.00 in cash, and a disposable cell

phone.

         The investigation established that the scheme involved claiming tax refunds

using the names of real people and channeling the tax refunds from the Internal

Revenue Service (IRS) to the Netspend pre-purchased debit cards. Fussell and

James secured the stolen identities, while James recruited Larkin to withdraw the

tax refunds from several ATM machines throughout Florida. James divided the

money based on each person’s respective responsibility. James received the most

money because he was responsible for channeling the tax refunds to the debit

cards.

         Further investigation revealed that a total of $73,422.00 was deposited onto

the debit cards that were recovered from the vehicle. Records from the IRS

revealed an extensive pattern of fraudulent filings associated with the debit cards

and the disposable cell phone found in the vehicle. These records confirmed that

James and his co-conspirators had intended to obtain a total amount of

$862,643.00 in tax refunds from a total of 121 victims. Before the scheme was

discovered, the IRS released $383,484.00 in tax refunds.

         On appeal, James raises five arguments. First, he argues that the district

court erred by attributing $862,643.00 in loss and 121 victims to him at sentencing.


                                            3
              Case: 14-11801     Date Filed: 02/05/2015    Page: 4 of 15


Second, he argues that the district court erred by applying a sophisticated means

enhancement under U.S.S.G. § 2B1.1(b)(10)(C). Third, he argues that the district

court erred by failing to apply a mitigating role reduction pursuant to

U.S.S.G. § 3B1.2(b), despite his failure to request such a reduction at sentencing.

Fourth, he argues that the district court erred, both in a constitutional and

evidentiary sense, by applying an aggravating role enhancement to him pursuant to

U.S.S.G. § 3B1.1(c). Finally, he argues that the district court erred in denying his

request for a downward variance, and that the imposed total sentence was therefore

unreasonable.

      For ease of reference, we will address each point in turn.


                                          II.

      First, we address James’s argument that the district court erred when it

attributed $862,643.00 in loss and 121 victims to him at sentencing. We review

the district court’s determination of the amount of loss and the number of victims

for clear error. United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001)

(amount of loss); United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013)

(number of victims).

      The Sentencing Guidelines apply a base offense level, and then increase the

level based on the value of the loss caused. U.S.S.G. § 2B1.1(a), (b)(1). A four-

level enhancement applies if the offense involved more than 50, but fewer than 250

                                           4
             Case: 14-11801     Date Filed: 02/05/2015   Page: 5 of 15


victims. Id. § 2B1.1(b)(2)(B). The sentencing court is only required to make a

reasonable estimate of the loss suffered, and a “sentencing judge is in a unique

position to assess the evidence and estimate the loss based upon that evidence.” Id.

§ 2B1.1 cmt. n.3(C). When a defendant challenges the attributed loss or the

number of victims, the government must provide evidence to establish the loss, and

the court must make factual findings sufficient to support its conclusions. Liss,

265 F.3d at 1230; Rodriguez, 732 F.3d at 1305.

      The Guidelines advise the court to use the greater of actual or intended loss.

U.S.S.G. § 2B1.1 cmt. n.3(A). Proper calculation requires consideration of all the

acts and omissions that were part of the same scheme. United States v. Rodriguez,

751 F.3d 1244, 1256 (11th Cir.), cert. denied, 135 S. Ct. 310 (2014). “A

participant in a conspiracy may thus be held responsible for the losses resulting

from the reasonably foreseeable acts of co-conspirators in furtherance of the

conspiracy.” Id. (internal quotation marks omitted).

      The evidence produced by the government indicated that all 121 fraudulent

tax returns and all 121 fraudulent debit card accounts were part of the same

conspiracy. The evidence also demonstrated that, had all 121 refunds been issued,

the loss to the United States Treasury would have been $862,643.00. This

intended loss was readily ascertainable based on the tax records from the IRS, and,

therefore, the court correctly used that number. See U.S.S.G. § 2B1.1 cmt. n.3(C).


                                          5
              Case: 14-11801     Date Filed: 02/05/2015    Page: 6 of 15


Furthermore, it should be noted that whether James personally stole all of the

identifying information, opened all of the accounts, or filed all of the tax returns is

of no significance. See Rodriguez, 751 F.3d at 1256. These acts were all

reasonably foreseeable acts that occurred in furtherance of the same conspiracy;

James’s participation in the conspiracy made him accountable for all of them. See

id. We conclude that the district court did not clearly err in attributing $862,643.00

in loss and 121 victims to James at sentencing.

                                          III.

      Next, we address James’s argument that the district court erred when it

applied a sophisticated means enhancement pursuant to U.S.S.G. §

2B1.1(b)(10)(C). Generally, we review application of a sophisticated means

enhancement for clear error. United States v. Ghertler, 605 F.3d 1256, 1267 (11th

Cir. 2010). However, issues raised for the first time on appeal are reviewed for

plain error only. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

The parties disagree about whether James properly preserved the issue below, but

it is unnecessary for us to resolve this question because James’s argument fails

even under the clear error standard.

      The Guidelines provide for a two-level enhancement if the offense in

question “involved sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). This

enhancement applies to especially complex or especially intricate conduct


                                           6
              Case: 14-11801    Date Filed: 02/05/2015    Page: 7 of 15


pertaining to the execution or concealment of an offense. Id. § 2B1.1 cmt. n.9(B).

“There is no requirement that each of a defendant’s individual actions be

sophisticated in order to impose the enhancement. Rather, it is sufficient if the

totality of the scheme was sophisticated.” Ghertler, 605 F.3d at 1267.

      While the district court did not explicitly mention the sophisticated means

enhancement, it did respond directly to James’s arguments concerning the

complexity of the conspiracy. In doing so, the district court noted that the

conspiracy involved the combination of two different crimes; identity theft and tax

fraud. The district court explained that James and his co-conspirators took

advantage of the Treasury’s ability to quickly refund tax money to its taxpayers

through the means of identity theft and the unauthorized use of other personal and

sensitive information. In addition, the undisputed evidence establishes that James

and his co-conspirators went to great lengths to conceal their criminal activity.

Specifically, James and his co-conspirators used disposable cell phones, opened

false debit accounts, recruited Larkin to retrieve the money from the ATMs, and

traveled throughout Florida to conceal the commission of these fraudulent acts.

The factual question, as to whether James’s role was limited to acquiring debit

cards and cashing them out, is insignificant because the court looks to the criminal

conspiracy as a whole. Ghertler, 605 F.3d at 1267. When viewed in its entirety,

the conspiracy was complex and sophisticated; both in its execution and in its


                                          7
              Case: 14-11801    Date Filed: 02/05/2015    Page: 8 of 15


concealment. Accordingly, the evidence supports the district court’s application

of the sophisticated means element.

                                         IV.

      Next, we confront James’s argument that that the district court erred by

failing to apply a mitigating role reduction pursuant to U.S.S.G. § 3B1.2(b),

despite his failure to request such a reduction at sentencing. Generally, whether a

defendant is a minor participant is a finding of fact, reviewed on appeal for clear

error. United States v. Rodriguez De Varon, 175 F.3d 930, 937–38 (11th Cir.

1999) (en banc). As noted above, however, issues raised for the first time on

appeal are reviewed for plain error only. Rodriguez, 398 F.3d at 1298. Error is not

plain unless it is clear or obvious under current law. United States v. Olano, 507

U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).

      The Sentencing Guidelines provide for a two-level reduction when a

defendant was a minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A

minor participant is one whose behavior is less culpable than that of most other

participants, “but whose role could not be described as minimal.” Id. § 3B1.2 cmt.

n.5. It is the defendant’s burden to substantiate the minor role reduction by a

preponderance of evidence. Rodriguez, 751 F.3d at 1258. To determine whether a

two level reduction for a minor role is appropriate, the district court must consider

the following: “1) the defendant’s role measured against the relevant conduct for


                                          8
              Case: 14-11801     Date Filed: 02/05/2015    Page: 9 of 15


which [he] has been held accountable at sentencing; and 2) [his] role as compared

to other participants in that relevant conduct.” Id.

      We have never vacated a sentence as unreasonable because the district court

failed to sua sponte apply a minor role reduction, and there is no law that would

require a district court to do so. For this reason, there cannot be plain error.

Olano, 507 U.S. at 734, 113 S. Ct. at 1777. In any event, a thorough examination

of the record does not indicate that a mitigating role reduction was warranted, or

for that matter, even reasonable. The undisputed evidence indicated that James

played a significant role in the conspiracy. James was responsible for channeling

the tax refunds to the debit cards, traveling to various ATM machines across

Florida to withdraw the cash proceeds, and dividing the proceeds between each co-

conspirator based on their respective responsibility. Plainly stated, the

conspiracy’s success was, in large part, contingent upon James’s conduct.

Consequently, James’s conduct cannot be described as conduct that was less

culpable than his co-conspirators conduct; nor can it be characterized as minimal.

We therefore cannot conclude that the district court, by failing to apply a

mitigating role reduction under these circumstances, plainly erred.

                                          V.

      Next, we consider James’s argument that the district court erred, both in a

constitutional and evidentiary sense, by applying an aggravating role enhancement


                                           9
             Case: 14-11801     Date Filed: 02/05/2015    Page: 10 of 15


to him pursuant to U.S.S.G. § 3B1.1(c). We review constitutional issues de novo;

however, we will “reverse only for plain error where the defendant fails to object at

the district court.” United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006)

(per curiam). A defendant’s role as an organizer or leader is a factual finding that

we review for clear error. United States v. Ramirez, 426 F.3d 1344, 1355 (11th

Cir. 2005) (per curiam).

      A district court may find facts such as an aggravating role “at sentencing so

long as the judicial factfinding does not increase the defendant's sentence beyond

the statutory maximum triggered by the facts conceded or found by a jury beyond

a reasonable doubt.” Ghertler, 605 F.3d at 1268 (internal quotation marks

omitted). The Sentencing Guidelines provide for a two-level enhancement when a

defendant was an organizer, leader, manager, or supervisor in the criminal activity.

U.S.S.G. § 3B1.1(c). This section applies to a participant who supervised or

managed “one or more other participants.” Id. § 3B1.1 cmt. n.2. Factors that are

considered to determine whether this enhancement is appropriate are “(1) exercise

of decision-making authority, (2) nature of participation in the commission of the

offense, (3) recruitment of accomplices, (4) claimed right to a larger share of the

fruits of the crime, (5) degree of participation in planning or organizing the

offense, (6) nature and scope of the illegal activity, and (7) degree of control and




                                          10
             Case: 14-11801     Date Filed: 02/05/2015    Page: 11 of 15


authority exercised over others.” Ramirez, 426 F.3d at 1355 (internal quotation

marks omitted).

      James’s constitutional argument fails. Our precedent is clear that because

the aggravating role found by the district court did not increase his total sentence

beyond the statutory maximum established by the facts conceded to by James;

there was no constitutional violation, and, therefore, no error. See Ghertler, 605

F.3d at 1268.

      In an evidentiary sense, James’s argument lacks persuasive luster as well.

As previously stated, the record reflects that James exercised power and decision-

making authority over the cashing out of the debit cards, was in charge of an entire

aspect of the offense, recruited Larkin as an accomplice and exercised authority

and control over her, selected the ATMs to be used, received a larger share of the

fraudulent proceeds, and, ultimately, played a major role in a complex and well

devised conspiracy to perpetrate tax fraud and identity theft. Therefore, the

evidence clearly supported the district court’s decision to apply an aggravating role

enhancement because § 3B1.1(c) applied to his behavior. See Ramirez, 426 F.3d at

1355 (defendant does not have to be the only leader or even the main kingpin of

the conspiracy to be considered a leader or organizer within the meaning of the

guidelines). For these reasons, the district court did not err by applying an

aggravating role enhancement.


                                          11
             Case: 14-11801      Date Filed: 02/05/2015    Page: 12 of 15


                                          VI.

      Finally, we address James’s argument that the district court erred in denying

his request for a downward variance and that the imposed total sentence was

therefore unreasonable. We review the substantive reasonableness of a sentence

for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007). The district court’s denial of a defendant’s request for a variance is

subsumed under that review. See United States v. Willis, 560 F.3d 1246, 1251

(11th Cir. 2009) (per curiam) (reviewing the reasonableness of the district court’s

denial of the defendant’s motion for variance by examining the sentence itself).

      The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

“the need . . . to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; . . . to afford adequate

deterrence to criminal conduct; . . . [and] to protect the public from further crimes

of the defendant.” See 18 U.S.C. § 3553(a)(2); see also United States v. Booker,

543 U.S. 220, 259–60, 125 S. Ct. 738, 764–65 (2005). The weight given to any

specific factor is generally committed to the discretion of the district court. United

States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). The court’s attachment of great

weight to a single factor is not necessarily reversible error, although a “district

court’s unjustified reliance on a single § 3553(a) factor may be a ‘symptom’ of an


                                           12
              Case: 14-11801     Date Filed: 02/05/2015     Page: 13 of 15


unreasonable sentence.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.

2008) (per curiam). A district court can err by unreasonably weighing the §

3553(a) factors and arriving at an unreasonable sentence given the facts of the

case. United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010) (en banc).

      In imposing a particular sentence, the court must also consider, in addition to

the purposes listed in § 3553(a)(2), the nature and circumstances of the offense, the

history and characteristics of the defendant, the kinds of sentences available, the

applicable guideline range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to the victim. Id. § 3553(a)(1), (3)–(7). The law does not

require the court to discuss these factors, or even explicitly state that it has

considered them. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). If

the court does explicitly state that it considered the required factors, however, that

statement alone is sufficient to establish that the court did, in fact, consider them.

Id. at 1329–30. Although we do not presume that a sentence falling within the

guideline range is reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). “The fact

that the appellate court might reasonably have concluded that a different sentence

was appropriate is insufficient to justify reversal of the district court.” Gall, 552

U.S. at 51, 128 S. Ct. at 597.


                                           13
             Case: 14-11801     Date Filed: 02/05/2015    Page: 14 of 15


      Here, the district court had no discretion to vary from the required statutory

minimum sentence on Count Nine. See United States v. Shelton, 400 F.3d 1325,

1333 n.10 (11th Cir. 2005); see also United States v. Clark, 274 F.3d 1325, 1328

(11th Cir. 2001) (per curiam) (Even when “a guidelines range falls entirely below a

mandatory minimum sentence, the court must follow the mandatory statutory

minimum sentence.”). On Counts One and Four, the district court gave a lengthy

explanation of its reasoning when it imposed the sentences, explicitly considering

the § 3553(a) factors, particularly James’s minimal criminal history. In addition,

the district court appropriately weighed James’s minimal criminal history and

personal characteristics against the extensive and complex nature of the fraud in an

attempt to fulfil all the goals of sentencing. These goals are to impose a sentence

that, among other things, promotes respect for the law, provides just punishment

for the offense, deters criminal conduct, and protects the public from James’s

future criminal conduct. Based on the sophistication of the crime, the number of

victims, and the scope of the fraud conspiracy, the district court reasonably

concluded that a total sentence within the guideline range was appropriate to

promote respect for the law, provide just punishment, and deter James and others

from committing further criminal activity. See 18 U.S.C. § 3553(a)(2). Because

the district court appropriately considered all of the relevant factors (both

aggravating and mitigating) and arrived at sentences for Counts One and Four,


                                          14
              Case: 14-11801     Date Filed: 02/05/2015    Page: 15 of 15


with a total sentence for all three counts that is within the guideline range, the

district court did not abuse its discretion.

      AFFIRMED.




                                           15
