           Case: 17-14378   Date Filed: 08/17/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14378
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:16-cr-00318-JDW-MAP-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus

RICHARD LILLISTON,

                                                        Defendant-Appellant.

                      ________________________

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

                            (August 17, 2018)

Before TJOFLAT, WILLIAM PRYOR and HULL, Circuit Judges.

PER CURIAM:
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      Richard Lilliston appeals his sentence of 60 months of imprisonment for

conspiring to defraud the United States. 18 U.S.C. § 371. While he served as the

chief executive officer of the Hillsborough Achievement Resources Centers,

Lilliston and several other employees misappropriated social security insurance

and disability benefits paid to developmentally disabled residents in group homes.

Lilliston challenges, under the Sentencing Guidelines, the calculation of his loss

amount and the enhancement of his sentence for committing a crime involving ten

or more victims and for selecting victims who were vulnerable. Lilliston also

challenges the substantive reasonableness of his sentence. We affirm.

      Lilliston and other officers of the Centers served as representative payees for

more than 60 residents who suffered from disorders like Down Syndrome and

Alzheimers Disease and who were unable to manage their government benefits.

After the Social Security Administration deposited benefits in the residents’ bank

accounts, Lilliston and Frank Pannullo, the chief financial officer of the Centers,

transferred the monies to a so-called “Endowment Account” that they had created.

Lilliston concealed the fraud from families by telling them that the transfers

enabled the residents to maintain a personal account balance of $2,000 or less, as

required to remain eligible for governmental benefits, and to conserve benefits for

their future needs. Lilliston also concealed the fraud from the Administration by

having his employees submit reports that falsely stated the benefits were spent on


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the residents. In the meantime, Lilliston and Pannullo transferred funds from the

Endowment Account to a general operating account that was used to pay their

salaries, raises, transportation allowances, and other expenses.

      After another officer demanded that the Centers audit the Endowment

Account, Lilliston instructed Pannullo and the company comptroller to have the

disabled residents sign a backdated trust agreement that purportedly approved

transferring their government benefits to the Endowment Account. The Board that

governed the Centers discovered the scheme to defraud, and an investigation

revealed that the conspirators had diverted $657,635.19 from residents’ bank

accounts to the general operating account.

      The district court did not err by attributing to Lilliston the full amount of the

loss. Lilliston argues that the “loss calculation of $657,635.19, while perhaps

technically correct, overstate[s] the effective amount of loss” from the fraud. But

Lilliston’s participation in a joint criminal activity made him responsible for all

losses caused by his coconspirators that were “within the scope of the jointly

undertaken criminal activity,” “in furtherance of that criminal activity,” and

“reasonably foreseeable in connection with that criminal activity.” United States

Sentencing Guidelines Manual § 1B1.3(a)(1)(B) (Nov. 2016). Lilliston conspired

with Pannullo and others to divert governmental benefits from their intended

recipients, and he orchestrated the plan to conceal the fraud from the beneficiaries’


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families and the Administration. The conspirators’ actions were, at least,

reasonably foreseeable to Lilliston in effectuating the scheme to defraud. Because

that scheme caused a loss between $550,000 and $1.5 million, the district court did

not err when it increased Lilliston’s base offense level by 14 levels. Id.

§ 2B1.1(b)(1)(H), (I).

      The district court also did not err by enhancing Lilliston’s sentence for

having 10 or more victims and for selecting victims who were vulnerable. A victim

is “any person who sustained any part of the actual loss,” id. § 2B.1 cmt. n.1,

which is “the reasonably foreseeable pecuniary harm that resulted from the

offense,” id. § 2B1.1 cmt. n.3(A)(i). Lilliston argues that his sole victim is the

Administration whose money was diverted, but the district court did not clearly err

in finding that the residents were victims because they “sustained at least a part of

the actual loss” by being deprived of benefits to which they were entitled either by

having paid payroll taxes or by qualifying for governmental assistance on the basis

of their age or a disability. The district court also did not clearly err in classifying

the residents as vulnerable victims. Victims are considered vulnerable when, “due

to [their] age, physical or mental condition, or other[] [characteristics, they are]

particularly susceptible to the criminal conduct.” Id. § 3A1.1 cmt n.2. Lilliston’s

victims had developmental disabilities and resided in group homes that provided

assisted living services. Lilliston knowingly exploited the residents’ vulnerabilities


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by having them sign trust agreements that they lacked the capacity to understand.

The district court committed no error when it increased Lilliston’s base offense

level based on the number of his victims, id. § 2B1.1(b)(2)(A)(i), and for selecting

victims who were vulnerable, id. § 3A1.1(b)(1).

      The district court also did not abuse its discretion by sentencing Lilliston to

60 months of imprisonment. Lilliston derived income by diverting governmental

benefits intended for developmentally disabled persons to company accounts used

to pay his wages and expenses, concealed his fraud from the beneficiaries’ families

and the Administration, and testified falsely at trial about his role in the conspiracy.

The district court reasonably determined that that the statutory purposes of

sentencing would be best served by imposing the maximum statutory penalty for

Lilliston’s crime. See 18 U.S.C. § 3553. Lilliston argues that he was entitled to a

downward variance to achieve parity in sentencing with Pannullo, but those

coconspirators were not similarly situated. See United States v. Docampo, 573 F.3d

1091, 1101 (11th Cir. 2009). There was no unwarranted disparity between

Lilliston’s sentence and the two-year sentence his coconspirator received because,

as the district court explained, Pannullo “cooperated, earned a . . . motion [for his

substantial assistance] from the government, [and his sentence] was not enhanced

because of obstruction of justice.” Lilliston’s sentence is reasonable.

      We AFFIRM Lilliston’s sentence.


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