           Case: 17-12380   Date Filed: 05/01/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12380
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:16-cr-00145-SDM-AAS-1



UNITED STATES OF AMERICA,

                                                       Plaintiff - Appellee,

                                  versus

DARIUS VASHON TOLBERT,

                                                       Defendant - Appellant.

                      ________________________

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

                              (May 1, 2018)

Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       Darius Tolbert, a federal prisoner, appeals the two, concurrent 52-month

sentences imposed following his convictions for theft of government property in

violation of 18 U.S.C. § 641 and theft or receipt of stolen mail matter in violation

of 18 U.S.C. § 1708. Tolbert contends the district court clearly erred by finding he

was responsible for an actual or intended loss of more than $550,000, which

triggered a fourteen point enhancement to Tolbert’s base level under U.S.S.G.

§ 2B1.1(b)(1)(H). After review, we affirm. 1

       For offenses involving fraud and deceit, the Guidelines provide the

defendant’s offense level increases in relation to the amount of money at issue.

See U.S.S.G. § 2B1.1(b). If the loss attributable to the defendant is more than

$550,000, but less than $1,500,000, the defendant is subject to a fourteen point

increase in his offense level. U.S.S.G. § 2B1.1(b)(1)(H).

       When calculating the amount of the loss, the district court looks to the

greater of the actual loss or intended loss. U.S.S.G. § 2B1.1, comment. (n.3(A)).

The Guidelines define actual loss as “the reasonably foreseeable pecuniary harm

that resulted from the offense.” Id. § 2B1.1, comment. (n.3(A)(i)). Intended loss is

“the pecuniary harm that the defendant purposely sought to inflict,” including



       1
         “We review a district court’s interpretation of the Sentencing Guidelines de novo, and
the determination of the amount of loss involved in the offense for clear error.” United States v.
Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009). Clear error will be found only if we are left
with a definite and firm conviction that the district court committed a mistake. Id.

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“harm that would have been impossible or unlikely to occur.” Id. § 2B1.1,

comment. (n.3(A)(ii)).

      Tolbert asserts the district court improperly relied on speculation to

determine the loss amount, given the lack of proof that he cashed any Social

Security benefits check besides the nine checks bearing his fingerprints—which

totaled approximately $10,000. When a defendant challenges one of the factual

bases of his sentence, the Government has the burden of establishing the disputed

fact by a preponderance of the evidence. See United States v. Sepulveda, 115 F.3d

882, 890 (11th Cir. 1997).

      Although the Government must support its loss calculation with specific,

reliable evidence, the Guidelines do not require the district court to calculate the

amount of the loss with utmost precision. See United States v. Campbell, 765 F.3d

1291, 1301–04 (11th Cir. 2014). The district court need only make a reasonable

estimate of the loss based on the available information. U.S.S.G. § 2B1.1,

comment. (n.3(C)). Because the district court is in a unique position to assess the

evidence and estimate the loss, its loss determination is entitled to appropriate

deference. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).

      The district court did not clearly err in determining Tolbert was responsible

for a loss amount of more than $550,000. The sentencing court’s factual findings

may be based upon “evidence heard during trial, facts admitted by a defendant’s


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plea of guilty, undisputed statements in the presentence report, or evidence

presented at the sentencing hearing.” Wilson, 884 F.2d at 1356. Here, reliable and

specific evidence adduced at trial proved by a preponderance of the evidence that

Tolbert was responsible for the $569,876.40 in stolen checks cashed at JMC JYOT

LLC (JMC), a convenience store in Live Oak, Florida.

      Four distinct batches of checks, corresponding with four check dates, were

cashed at JMC. Tolbert’s fingerprints were found on nine checks bearing three

different check dates: May 23, June 27, and July 3. The May 23 checks were all

cashed before the July 3 checks had been printed, and all the June 27 checks were

cashed several days before any of the July 3 checks. Thus, the evidence showed

Tolbert handled multiple batches of checks cashed at JMC, and could not have

handled all nine checks at once.

      This was consistent with Richard Anderson’s testimony that Tolbert bought

checks from him on one initial occasion, followed by four to five subsequent

occasions. Anderson testified to selling Tolbert approximately $510,000 to

$620,000 in checks: $10,000 to $20,000 on the first occasion and $100,000 on four

or five subsequent transactions—except that $200,000 in checks were sold on the

last occasion. The amounts cashed at JMC were largely consistent with the

amounts Anderson testified to selling Tolbert. Approximately $60,000 worth of

checks from the April 18 batch were cashed at JMC, approximately $100,000 from


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the May 23 batch, and, on the last two occasions, batches of approximately

$200,000 were cashed at JMC. Finally, the dates the checks were cashed at JMC

corresponded with Anderson’s testimony about when he sold checks to Tolbert.

Anderson testified he sold checks to Tolbert between March and July 4, 2012, and

the checks were cashed at JMC between April 24 and July 13, 2012.

      Based on the totality of this specific, reliable evidence—that Tolbert handled

multiple batches cashed at JMC, the relationship between the value of the checks

Anderson sold Tolbert and the value of the checks cashed at JMC, and the

relationship between the dates Anderson sold checks to Tolbert and the dates the

checks were cashed at JMC—the district court did not clearly err in determining it

was more likely than not Tolbert was responsible for the checks cashed at JMC.

Consequently, the district court did not err in enhancing Tolbert’s offense level by

fourteen points. We affirm.

      AFFIRMED.




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