                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            NOV 24, 2008
                            No. 07-11458                  THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                D. C. Docket No. 05-00021-CR-006-HL-7

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee
                                                                Cross-Appellant,

                                  versus

NORMAN KYLE JARRARD,
RICHARD ERIC JARRARD, et al.,

                                                       Defendants-Appellants
                                                            Cross-Appellees.


                      ________________________

               Appeals from the United States District Court
                   for the Middle District of Georgia
                     _________________________

                          (November 24, 2008)

Before ANDERSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Norman Kyle Jarrard (Kyle), Richard Eric Jarrard (Eric), and Steven Larry

Jarrard (Steven) appeal their convictions and 41-month sentences for conspiring to

defraud Bank of Milan and Colony Bank, in violation of 18 U.S.C. § 371 in

combination with 18 U.S.C. § 1344, and knowingly defrauding a financial

institution, in violation of 18 U.S.C. § 1344. Kyle, Eric, and Steven assert multiple

arguments on appeal, which we address in turn. The Government also asserts one

issue on cross-appeal. After review, we affirm their convictions and sentences.

                                          I.

      Kyle, Eric and Steven assert the evidence was insufficient to find that Bank

of Milan was a member of the Federal Deposit Insurance Corporation (FDIC), as a

fax cover letter stating “Member [FDIC]” did not establish the bank was federally

insured.

      If, at the close of all evidence, the defendant did not move for a judgment of

acquittal, we may only reverse a conviction to prevent a manifest miscarriage of

justice. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). In order

for us to find a manifest miscarriage of justice, we must find the evidence, viewed

in the light most favorable to the government, was so tenuous the defendant’s

conviction was shocking. Id. To sustain a conviction under § 1344, the

government must prove that the bank was insured by the FDIC, which is both a



                                          2
substantive element of the crime and a jurisdictional prerequisite. United States v.

Dennis, 237 F.3d 1295, 1303 (11th Cir. 2001).

      In Dennis, the defendant conducted a check-kite scheme and was indicted

for bank fraud. Dennis, 237 F.3d at 1303-04. At trial, an FBI agent testified the

two banks involved were FDIC insured, but, on cross-examination, he admitted he

had not seen the insurance certificates and simply had accepted the banks officials’

word they were insured. Id. at 1304. We held the FBI agent’s testimony did not

establish the banks were federally insured, but stated a letter sent from the vice

president of one of the banks to the FBI was sufficient to establish beyond a

reasonable doubt the bank was federally insured because the bank stationary on

which the letter was written stated “MEMBER FDIC.” Id. We reversed the

conviction, however, because there was no evidence the second bank was federally

insured. Id. at 1305.

      Because Kyle, Eric, and Steven did not renew their motions for judgment of

acquittal after the district court reopened the case and admitted the fax cover sheet,

we determine only whether their convictions resulted in manifest injustice. See

Bender, 290 F.3d at 1284. The fax cover sheet stating “Member [FDIC]” was

sufficient to establish the Bank of Milan was federally insured. See Dennis, 237

F.3d at 1304. Accordingly, their convictions did not result in a manifest injustice.



                                           3
                                          II.

      Kyle, Eric, and Steven contend the district court applied the wrong standard

of proof in determining the loss amount for purposes of sentencing. We review

sentencing issues not raised before the district court for plain error. See United

States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007). The Guidelines

provide that, when a defendant is convicted of conspiracy to commit multiple

offenses, he shall be sentenced as if he had been convicted on a separate count of

conspiracy for each offense. U.S.S.G. § 1B1.2(d). The commentary to § 1B1.2

provides:

      Particular care must be taken in applying subsection (d) because there
      are cases in which the verdict or plea does not establish which
      offense(s) was the object of the conspiracy. In such cases, subsection
      (d) should only be applied with respect to an object offense alleged in
      the conspiracy count if the court, were it sitting as a trier of fact,
      would convict the defendant of conspiring to commit that object
      offense. Note, however, if the object offenses specified in the
      conspiracy count would be grouped together under § 3D1.2(d) (e.g., a
      conspiracy to steal three government checks) it is not necessary to
      engage in the foregoing analysis, because § 1B1.3(a)(2) governs
      consideration of the defendant’s conduct.

Id. § 1B1.2(d), cmt. (n.4).

      Because the counts were grouped together, pursuant to § 3D1.2(d), the

district court was not required to find, beyond a reasonable doubt, that Kyle, Eric,

and Steven committed each object of the conspiracy. Instead, the general rule that



                                           4
a sentencing court is permitted to find facts by a preponderance of the evidence

applied, and thus, the district court did not plainly err in finding the loss amount by

a preponderance of the evidence. See Mangaroo, 504 F.3d at 1353; United States

v. Campbell, 491 F.3d 1306, 1314 n.11 (11th Cir. 2007) (stating a district court

may consider facts proven by a preponderance of the evidence during sentencing).

                                          III.

      Kyle, Eric, and Steven assert the district court incorrectly determined the

loss amount that Bank of Milan suffered as a result of their fraud. We review the

district court’s fraud loss calculation for clear error. United States v. Hernandez,

160 F.3d 661, 666-67 (11th Cir. 1998). Our review of a restitution order under the

Mandatory Victim Restitution Act (MVRA) involves three standards of review.

United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007), cert. denied, 128

S. Ct. 1295 (2008). The legality of a restitution order is reviewed de novo, the

value of the lost property is reviewed for an abuse of discretion, and the restitution

order’s underlying factual findings are reviewed for clear error. Id. A defendant

can be held responsible for all losses resulting from a co-conspirator’s reasonably

foreseeable acts conducted in furtherance of the conspiracy. United States v.

Dabbs, 134 F.3d 1071, 1082 (11th Cir. 1998).




                                           5
      Under the MVRA, the district court is required to order a defendant to pay

restitution to the victim of a loss of property. 18 U.S.C. § 3663A. Under U.S.S.G.

§ 2B1.1, a defendant’s offense level is determined by the amount of loss attributed

to the fraud. See U.S.S.G. § 2B1.1(b)(1). The district court is only required to

make a reasonable estimate of the loss, but the court cannot base its calculation on

mere speculation. Id. § 2B1.1(b)(1), cmt. (n.2(c)); United States v. Gupta, 463

F.3d 1182, 1200 (11th Cir. 2006) (discussing former U.S.S.G. § 2F1.1, which has

been consolidated with § 2B1.1), cert. denied, 127 S. Ct. 2446 (2007). The

government must establish the loss calculation with specific evidence. Gupta, 463

F.3d at 1200.

A. Kyle and Steven

      The district court found that all of Bank of Milan’s loss was fraud loss

because Kyle and Steven fraudulently misrepresented the purpose for which the

loan was obtained, and concealed their debt to Colony Bank at the time of the SBA

loan, but the court did not identify the specific fraudulent misrepresentations to

which it was referring or the facts that it found that Kyle and Steven concealed.

Based on the Government’s arguments during the sentencing hearing, it appears

that Kyle and Steven are correct in assuming, with regard to the fraudulent

misrepresentations, that the court must have found that they did not intend to



                                           6
concentrate on increasing Eagle Carpet Mills’ sales, as they indicated in the SBA

loan application. It also appears that Kyle and Steven are correct that they did not

shut down Eagle Carpet Mills as soon as the company received the SBA loan, as it

had gross receipts of $1,302,910 and $456,785 in 2001 and 2002, respectively.

Additionally, Kyle and Steven are correct that their repayment history indicates

that, at the time they received the loan, they intended to repay it, as they made all

but two of the monthly payments on time for the first two-and-a-half years after the

loan.

        Contrary to Kyle’s and Steven’s assertions, however, other evidence in the

record supports the court’s finding they made a material misrepresentation in the

SBA loan application when they stated they would use the loan to concentrate on

increasing Eagle Carpet Mills’ sales. Specifically, the spreadsheet listing Express

Carpet Sales loans from Colony Bank shows that, in the 9 months after the SBA

loan closed, the company received 12 different loans, totaling $504,958.99, which

implies that Kyle and Steven were concentrating on increasing the business of

Express Carpet Sales immediately after receiving the SBA loan. Therefore, the

Government presented evidence from which the district court could have found, by

a preponderance of the evidence, that Kyle and Steven did not intended to focus on

increasing the sales of Eagle Carpet Mills, as stated in the SBA loan application,



                                           7
but were focused on increasing business at Express Carpet Sales, and thus, the

court did not clearly err in finding that all of Bank of Milan’s loss was attributed to

material misrepresentations. Robertson, 493 F.3d at 1330; Gupta, 463 F.3d at

1200;; Hernandez, 160 F.3d at 666-67. Because the evidence supports the district

court’s finding based on the fact that Kyle and Steven made a material

misstatement in the SBA loan application, this Court does not need to address

Kyle’s and Steven’s additional argument that they did not conceal their Colony

Bank debt from Bank of Milan.

B. Eric

      The district court did not err in finding Eric was responsible for Bank of

Milan’s loss, to the extent that Kyle and Steven were responsible, despite the fact

that he no longer was with the bank at the time of the SBA loan. Eric was

convicted of conspiring with Kyle and Steven to defraud banks through the use of

fraudulent statements, and, since Eric was aware that Kyle and Steven were

defrauding Colony Bank, it was reasonably foreseeable to him that they also would

defraud Bank of Milan, as he knew that their business was struggling financially.

Dabbs, 134 F.3d at 1082.




                                           8
                                         IV.

      Kyle, Eric, and Steven contend the district court erred in finding their fraud

involved sophisticated means. We review a district court’s findings of fact for

clear error and its interpretation of the Sentencing Guidelines de novo. United

States v. Dorman, 488 F.3d 936, 938 (11th Cir.), cert. denied, 128 S. Ct. 427

(2007). A finding that sophisticated means were used is a finding of fact reviewed

for clear error. United States v. Barakat, 130 F.3d 1448, 1456-57 (11th Cir. 1997).

      The Guidelines provide for a two-level enhancement when a fraud involves

“sophisticated means.” U.S.S.G. § 2B1.1(b)(8)(C) (2003). The Guidelines define

sophisticated means as:

      especially complex or especially intricate offense conduct pertaining
      to the execution or concealment of an offense. For example, in a
      telemarketing scheme, locating the main office of the scheme in one
      jurisdiction but locating soliciting operations in another jurisdiction
      ordinarily indicates sophisticated means. Conduct such as hiding
      assets or transactions, or both, through the use of fictitious entities,
      corporate shells, or offshore financial accounts also ordinarily
      indicates sophisticated means.

Id. cmt. (n.6(B)). While we have not expressly stated what qualifies as

sophisticated means, we have held “sophisticated means involves more than

minimal planning.” United States v. Humber, 255 F.3d 1308, 1314 (11th Cir.

2001) (holding “sophisticated means” and the now defunct “more than minimal

planning” enhancements could be applied cumulatively).

                                          9
       The district court did not clearly err in applying a sophisticated means

enhancement for Kyle and Steven, as their fraudulent scheme occurred over a

period of time, involved the use of a bank insider, and involved hiding the true

purposes for which the loaned money was going to be used. Additionally, the

district court did not clearly err in applying a sophisticated means enhancement for

Eric, as he used “straw borrowers” to hide from Colony Bank that he was

approving loans for a business that he owned.1

                                               V.

       On cross-appeal, the Government asserts the district court erred in finding

that Kyle, Eric, and Steven were not responsible for the full amount of Colony

Bank’s loss.

       The district court found the Government failed to meet its burden of

establishing Colony Bank’s specific loss amounts attributable to specific acts of

fraud, with the exception of the counts for which Eric was convicted, as the

Government simply argued Eric had committed fraud in making loans to Kyle and

Steven, but it did not provide the court with evidence of the exact loss amount

attributed to the acts of fraud. Therefore, the Government’s argument the district


       1
          To the extent Eric asserts the district court erred in applying the sophisticated means
enhancement because he also received an enhancement for use of a special skill, he has waived
the argument, as he does not provide any support for his assertion the enhancements could not be
applied together.

                                               10
court did not make any factual findings is inaccurate. Additionally, the

Government’s argument there was no other explanation for the entire loss amount,

other than that it resulted from fraud, is inaccurate, as there was evidence presented

at trial from which the court could have found that not all loans made by Colony

Bank involved an act of fraud. Specifically, the court heard the following

testimony: (1) Dampier testified Eric did not mail most of the assignment letters to

Kyle’s and Steven’s customers, but this statement implies Eric did send some of

the letters, (2) Eric included the debt to Bank of Milan in several of the credit

memoranda that he prepared for the loan committee; (3) Taylor testified it was his

understanding that Express Carpet Sales, Kyle’s business, was independent from

Steven’s business; and (4) Express Carpet Sales had its own tax identification

number and filed taxes independent of Jarrard Textile Sales and Eagle Carpet

Mills. Since it was possible for some of the loans to have been made without

fraud, the Government was required to prove Colony Bank’s loss amount resulting

from the acts of fraud by doing more than arguing there were some acts of fraud

and the total loss was $736,650.41. See 18 U.S.C. § 3664(e); Gupta, 463 F.3d at

1200. The Government failed, however, to provide the district court with any

evidence connecting specific loss amounts to acts of fraud, and thus, the district




                                           11
court did not clearly err in finding the Government failed to meet its burden of

proof.

         AFFIRMED.




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