              Case: 12-14813    Date Filed: 06/25/2013   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14813
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 6:12-cr-00077-JA-GJK-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

LOTTIE DAVIS,

                                                             Defendant-Appellant.

                          ________________________

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

                                  (June 25, 2013)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Lottie Davis appeals her sentence of 20 months of imprisonment for one

count of conspiring to make, pass, or possess a counterfeit security and to commit

bank fraud, 18 U.S.C. §§ 1344, 513(a), 371, two counts of bank fraud, id. §§ 1344,
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2, and four counts of making, passing, or possessing a counterfeit security, id.

§§ 513(a), 2. Davis challenges the enhancement of her sentence for obstruction of

justice based on perjury and the destruction of material evidence. See United

States Sentencing Guidelines Manual § 3C1.1 (Nov. 2011). We affirm.

      After federal agents learned of a scheme to defraud Target stores, their

investigation revealed that Davis participated in a conspiracy in which Baresha

Williams, Lavitress Williams, and others purchased merchandise using counterfeit

cashier’s checks and later returned the merchandise to obtain cash. Agents

obtained surveillance videotapes depicting some of the transactions and showing

Davis and her vehicle at several of the Target stores.

      At trial, Jeffery Starnes, an agent of the Secret Service, testified about Davis

being cagey during her interview. Davis identified herself and her vehicle in still

images obtained from the surveillance videotapes, but denied any wrongdoing.

According to Agent Starnes, Davis remarked spontaneously, “I didn’t make all the

checks,” but then denied producing any cashier’s checks. Agent Starnes also

testified that Davis gave evasive and inconsistent responses to questions about how

many computers she owned.

      According to Agent Starnes, Davis admitted some involvement in the

conspiracy, but said that Baresha had created the counterfeit cashier’s checks and

had ordered Davis to destroy the computer used to produce the checks. Davis


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admitted that she had supplied the computer and printer that Baresha used to

produce the counterfeit checks; she had allowed Baresha to print counterfeit checks

two or three weeks earlier; and she had transported the Williams sisters to several

Target stores. Davis also admitted to disposing of the hard drive and computer

after being instructed to do so by Baresha. Davis took Agent Starnes to the gas

station where she allegedly had disposed of the hard drive, but they were unable to

retrieve it.

       At trial, Baresha testified that Davis had been a leader in the conspiracy, had

attempted to evade detection, and had decided to dispose of the computer. Baresha

testified that Davis and her sister had recruited her to join the conspiracy; Davis

received half the proceeds of the fraud; Davis created the cashier’s checks using a

desktop computer at her office; Davis often drove her car to the Target stores and

helped the Williams sisters select items to purchase; and Davis returned an item to

Target on one occasion. According to Baresha, when Lavitress got caught trying

to use a counterfeit cashier’s check at a Target store in DeLand, Florida, Davis left

Lavitress and wandered inside the store as several Target employees followed

Lavitress outside the store. Eventually, Davis had to walk past the store employees

to join her cohorts at her car. As Davis drove away, she noticed that the car was

low on gas and agreed with her cohorts not to stop at a gas station because the

police might be looking for them. After agents arrested Baresha, she called Davis


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and warned her that the police “kn[ew] everything.” Davis said that she would go

to her office immediately and destroy her computer, printer, and the check paper.

Baresha testified that she did not know how to dispose of a hard drive and denied

telling Davis to destroy the evidence.

      Davis testified and denied knowledge of or participation in the conspiracy.

Davis acknowledged that she returned an item to Target for Lavitress, but Davis

explained that she did so because Lavitress did not have a valid identification card.

Davis testified that she learned that the Williams sisters were doing something

illegal at the Target store in DeLand, Florida. According to Davis, she transported

the Williams sisters to the store, shopped briefly with them, and then walked to the

clothes department after observing Lavitress leave a register where the cashier was

on the telephone. Suddenly, Davis received a telephone call from Baresha, who

said that store management had called the police and Davis had to return to her car.

Inside the car, Baresha, Lavitress, and Lavitress’s daughter began yelling at Davis

about which direction to drive, and the three women insisted on leaving the store

although the car was low on gas.

      Davis testified that she disposed of the computer after receiving a call from

Baresha, who said she was being framed by Lavitress and she needed Davis to

“clean up” her computer, remove the hard drive, and throw it away. Davis said she

did not “know [she] was throwing away property that had any wrongdoing on it”


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and discarded the computer only because she panicked and “didn’t want nobody

coming to bother [her] about anything.” Davis also stated that she had not thought

she was doing anything wrong by disposing of the computer because it was her

personal property.

      Davis also provided an implausible explanation for the incriminating

statements she made to Agent Starnes. Davis testified that Agent Starnes asked if

she or others had produced checks at her office, to which she responded, “if checks

got made in my office, I’m pretty sure all of them didn’t get made in there.” Davis

explained that she made the statement because “I could have been asked, did

Baresha make any checks — I don’t know.” When another agent asked a follow-

up question about her making all the checks, Davis replied, “I didn’t say that. I

said if there were any made in my office, I’m pretty sure all of them wasn’t made

there because [Baresha] wasn’t there that much.” When asked to explain why she

told Agent Starnes that Baresha produced checks a few weeks before her interview,

Davis testified, “[t]he question I remember was when the last time she was at my

office. And I said, maybe two or three weeks ago. I don’t remember him asking

me when the last time she made checks there.” On cross-examination, Davis

denied saying that she knew Baresha was using her computer to make fraudulent

checks.




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      At trial, the jury discredited Davis’s testimony and convicted her of all

charges against her. Davis’s amended presentence investigation report included in

her adjusted offense level a two point enhancement for obstruction of justice,

U.S.S.G. § 3C1.1. The report based the enhancement on Davis’s false testimony at

trial and her disposal of the hard drive of her computer. Based on an adjusted

offense level of 15 and a criminal history of I, the report provided an advisory

guidelines range between 18 and 24 months of imprisonment.

      Davis objected to the enhancement for obstruction of justice, but the district

court overruled her objection. The district court found that Davis’s testimony was

“not truthful,” “was inconsistent inherently, . . . [and] with the facts of the case,

including the testimony of other witnesses.” Even so, the district court hesitated to

base the enhancement “on [that] only” because “testimony can be interpreted

different ways” and Davis’s testimony was not “identical to the testimony of other

witnesses.” The district court also found that Davis had destroyed the computer,

which was “classic obstruction of justice.” The district court ruled that the two-

point enhancement was “appropriate . . . for both reasons . . ., but most certainly

for the destruction of the computer.”

      The district court did not clearly err in enhancing Davis’s sentence for

obstruction of justice. A defendant is subject to a two-level increase if she

“willfully obstructed or impeded, or attempted to obstruct or impede, the


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administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Davis testified

that she knew the Williams sisters had been engaged in illegal activities for months

before she disposed of her computer, yet she destroyed the computer at Baresha’s

request. See id. § 3C1.1 cmt. n.4(D) & n.6. When Davis dismantled the machine

and discarded the hard drive that stored information about how long and how many

counterfeit checks had been produced, she “destroy[ed] the most incriminating

evidence against her” and her cohorts. United States v. Massey, 443 F.3d 814, 821

(11th Cir. 2006). And Davis was subject to the enhancement for “committing . . .

perjury.” U.S.S.G. § 3C1.1 cmt. n.4(B). Davis’s testimony was internally

inconsistent, irreconcilable with her earlier admissions to Agent Starnes, and

implausible. See United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002). For

example, Davis admits she “voluntarily acknowledged [to Agent Starnes] that the

computer (her computer) was in fact used to make the [cashier’s] checks,” but

Davis testified that she had been unaware her computer “had any wrongdoing on

it” and that she had not known Baresha used her computer to make fraudulent

checks. Davis’s conduct and testimony warranted an enhancement for obstruction

of justice.

       We AFFIRM Davis’s sentence.




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