                                                                  [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                       APRIL 10, 2012
                                            No. 11-10627
                                        Non-Argument Calendar           JOHN LEY
                                                                         CLERK
                                      ________________________

                            D.C. Docket No. 4:10-cr-00050-RH-WCS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

EUGENE TELFAIR,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (April 10, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:
       Eugene Telfair appeals his convictions and sentences for conspiracy to steal

or misapply funds from an organization that receives federal assistance and to

commit wire fraud, in violation of 18 U.S.C. §§ 371, 1349, 666(a)(1)(A), and

1343; stealing or misapplying funds from an organization that receives federal

assistance, and aiding and abetting, in violation of 18 U.S.C. §§ 666(a)(1)(A) and

2; and misapplying funds as a credit union employee, and aiding and abetting, in

violation of 18 U.S.C. §§ 657 and 2. On appeal, Telfair argues that the evidence at

trial was insufficient to convict him of the crimes charged. Telfair also argues that

the district court clearly erred at sentencing in calculating a reasonable loss

amount under U.S.S.G. § 2B1.1(b)(1), and that it erred in concluding that the two-

level enhancement for abuse of a position of trust was appropriate under U.S.S.G.

§ 3B1.3.1

       I.      The Sufficiency of the Evidence

       Telfair argues that the district court erred in denying his motion for

judgment of acquittal, and that the evidence at trial was insufficient to convict him

of any of the crimes charged, because the evidence showed that he had a contract

for consulting services with Florida Agricultural and Mechanical University


       1
          Telfair attempts to adopt the arguments in the brief of his codefendant Robert Nixon,
filed in appeal number 11-10697, but Nixon raises no additional issues. Therefore, Telfair’s
attempt to adopt Nixon’s brief has no practical impact on the appeal.

                                                2
(“FAMU”). Telfair asserts generally that, pursuant to the terms of the consulting

services agreement (“CSA”), he was entitled to $150,000.00 that was at issue in

the case, so as a matter of law, he cannot be convicted of stealing or conspiring to

steal money that is lawfully his. Telfair asserts that although FAMU remitted the

$150,000.00 check at issue to FAMU Federal Credit Union (“FAMU FCU”), the

check was intended for him pursuant to the CSA, and he had the authority as

President of FAMU FCU to negotiate the check.

      We review de novo the denial of a motion for judgment of acquittal, and in

reviewing the sufficiency of the evidence underlying a conviction, we consider the

evidence “in the light most favorable to the government, with all inferences and

credibility choices drawn in the government’s favor.” United States v. DuBose,

598 F.3d 726, 729 (11th Cir. 2010) (quotation omitted). The standard of review

for sufficiency of the evidence is whether a reasonable trier of fact could find that

the evidence established guilt beyond a reasonable doubt. United States v.

Godinez, 922 F.2d 752, 755 (11th Cir. 1991). “The question is whether reasonable

minds could have found guilt beyond a reasonable doubt, not whether reasonable

minds must have found guilt beyond a reasonable doubt.” United States v. Bacon,

598 F.3d 772, 775 (11th Cir. 2010) (quotation and alteration omitted).

Accordingly,

                                          3
      It is not necessary for the evidence to exclude every reasonable
      hypothesis of innocence or be wholly inconsistent with every
      conclusion except that of guilt . . . . The jury is free to choose
      between or among the reasonable conclusions to be drawn from the
      evidence presented at trial, and the court must accept all reasonable
      inferences and credibility determinations made by the jury.

United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (quotations

omitted). We are “bound by the jury’s credibility choices, and by its rejection of

the inferences raised by the defendant.” United States v. Peters, 403 F.3d 1263,

1268 (11th Cir. 2005).

      In order to convict someone of engaging in a conspiracy, the government

must prove: “1) the existence of an agreement to achieve an unlawful objective,

2) [the defendant’s] knowing and voluntary participation in the agreement, and

3) the commission of an act in furtherance of the agreement.” United States v.

Tampas, 493 F.3d 1291, 1298 (11th Cir. 2007); 18 U.S.C. § 371. “The knowledge

requirement is satisfied when the [g]overnment shows a defendant’s awareness of

the essential nature of the conspiracy.” United States v. Ndiaye, 434 F.3d 1270,

1294 (11th Cir. 2006). The agreement and participation in the conspiracy need not

be explicit and may be inferred from circumstantial evidence. United States v.

Prince, 883 F.2d 953, 957 (11th Cir. 1989). “[T]he defendant’s assent can be

inferred from acts that furthered the conspiracy’s purpose.” United States v.



                                         4
Miller, 693 F.2d 1051, 1053 (11th Cir. 1982) (quotation omitted).

      In order to convict someone of stealing or misapplying funds from an

organization receiving federal assistance, the government must prove: 1) the

defendant converted property owned by, or under the care, custody, or control of

an organization receiving federal assistance; 2) the defendant was an agent of such

an organization; 3) that property was valued at $5,000 or more; and 4) the

organization received in excess of $10,000 in federal funds during the 1-year

period in which the defendant converted the property. 18 U.S.C. § 666(a)(1)(A);

Tampas, 493 F.3d at 1298. The statute defines an “agent” as one who is

“authorized to act on behalf of another” and, “in the case of an organization or

government, includes a servant or employee, and a partner, director, officer,

manager, and representative.” 18 U.S.C. § 666(d)(1); United States v. Langston,

590 F.3d 1226, 1233-34 (11th Cir. 2009).

      “The elements of wire fraud under 18 U.S.C. § 1343 are (1) intentional

participation in a scheme to defraud and (2) use of the interstate wires in

furtherance of the scheme.” United States v. Hasson, 333 F.3d 1264, 1270 (11th

Cir. 2003). “A scheme to defraud requires proof of material misrepresentations, or

the omission or concealment of material facts reasonably calculated to deceive

persons of ordinary prudence.” Id. at 1270-71 (citations omitted). An interstate

                                          5
wire transmission is “for the purpose of executing” the scheme to defraud if it is

“incident to an essential part of the scheme” or “a step in the plot.” Id. at 1272-73

(quotations omitted).

      In order to convict someone of misapplying funds as a credit union

employee, the government must prove: 1) the defendant was an employee of the

credit union, 2) he willfully misapplied funds intrusted to the credit union’s care,

3) he acted with intent to injure or defraud the credit union, and 4) the credit

union’s accounts were insured by the National Credit Union Administration

Board. 18 U.S.C. § 657; see United States v. Payne, 750 F.2d 844, 855 (11th Cir.

1985) (setting forth the elements of misapplying bank funds under 18 U.S.C.

§ 657).

      The evidence was sufficient for a reasonable jury to conclude that Telfair,

who was the President of FAMU FCU, knowingly and willfully stole at least

$134,000.00 in grant funds belonging to FAMU, which FAMU had entrusted to

the care of FAMU FCU, and further, that Telfair conspired with his codefendant to

steal those funds and to commit wire fraud.

      The evidence showed that the grant documents provided for consulting

services with FAMU FCU, not with any individual consultant, and that HUD

approved FAMU FCU as the vendor and the custodian of the MLP under the grant

                                           6
agreement. FAMU’s purchasing director and general counsel approved and

officially executed the CSA, which provided for the $150,000.00 payment at issue,

based upon their belief that the agreement was with FAMU FCU, not Telfair.

Although the CSA listed Telfair as the payee, there was testimony that, because

Telfair was the President of FAMU FCU, he would have been the person to sign

the contract on behalf of FAMU FCU. After checking the grant documents for

compliance, Toletha Sylvester Harris approved a requisition order for a payment

of the $150,000.00 to FAMU FCU. Dr. Gray-Ray, who had approved and signed

the CSA, completed a purchase exemption for “Contractual services with FAMU

Federal Credit Union.” Thereafter, FAMU issued a check made payable to

FAMU FCU, not Telfair, for $150,000.00, which Telfair endorsed on behalf of

FAMU FCU and deposited into the “CCEDI-FAMU Urban Policy Grant” account.

The evidence showed that the account had been used as a depository for grant

funds, including funds used to secure micro-loans under the MLP. There was no

evidence of any other account which also held FAMU’s grant funds.

      The evidence further showed that, after Telfair deposited the $150,000.00

check into the grant account, he withdrew $15,000.00, or 10% of the deposit, as

his fee for administering the MLP, and deposited it into his personal bank account.

The ten percent fee was provided for in the CSA, as well as the agreement under

                                         7
which FAMU FCU had administered the MLP under the prior HUD grant. The

evidence showed that Telfair always withdrew an amount equivalent to roughly

ten percent of each of the grant deposits, which was consistent with the

administrative fee the parties had agreed to. Telfair did not claim the $150,000.00

on his income tax return in 2004, 2005, 2006, 2007, or 2008. Based on this

evidence, it was reasonable for the jury to conclude that the $150,000.00 at issue

belonged to FAMU and not Telfair.

      Furthermore, although Telfair claims that FAMU made a mistake when it

issued the check to FAMU FCU instead of him individually, he did not ask FAMU

to re-issue the check in his name so that he could deposit the money into his

personal Morgan Stanley account, as he had done previously with the legitimate

fees he received for administering the MLP. Also, Telfair waited almost four

years before attempting to access the funds, after McGill, the individual who

signed the CSA on behalf of FAMU, had pled guilty to criminal conduct relating

to her mismanagement of grant funds. Finally, as discussed below, the evidence

supported that instead of just withdrawing the money Telfair claimed already

belonged to him pursuant to the CSA, as discussed below, Telfair conspired with

Nixon to draft three fraudulent “contracts” in order to facilitate and conceal their

scheme to steal the grant money remaining in the account. Based on this

                                          8
evidence, it was reasonable for the jury to conclude that the $150,000.00 at issue

belonged to FAMU and not Telfair.

      The evidence was also sufficient for a reasonable jury to find that Telfair

and Nixon conspired to steal and actually stole approximately $134,000.00 in

grant funds belonging to FAMU. Although, as discussed above, the evidence

supported that the $150,000.00 in the CCEDI-FAMU account at issue did not

belong to Telfair, the evidence also showed that, from 2004 to 2008, Telfair

caused the TIN on the CCEDI-FAMU grant account to be changed multiple times,

with the final TIN being his own SSN. He also altered the signature cards for the

account, eventually listing himself and Nixon as the authorized signors, which

gave them the ability to write checks to one another until they depleted the

account’s funds. Even though Telfair and Nixon, as signors on an account

bearing their SSNs, had gained access to the funds in the CCEDI-FAMU account,

the evidence showed that they drafted multiple false contracts in an attempt to

facilitate and conceal their theft of the remaining grant funds in the CCEDI-

FAMU account.

       On June 24, 2008, Telfair signed an agreement with Nixon, who signed on

behalf of the Institute, which purported to entitle Telfair to seven percent of the

funds remaining in the CCEDI-FAMU account. Pursuant to his agreement with

                                          9
the “Institute,” Telfair was to continue administering the MLP, and he was to

provide several listed documents related to the MLP. However, the evidence

showed that (1) the grant was closed on November 28, 2006, and there were no

new grant funds; (2) the last loan check under the Institute’s MLP was distributed

on August 21, 2007; and (3) Telfair had already provided the same MLP

documents under two previous contracts. The evidence showed that Telfair then

e-mailed Nixon another copy of the June 24, 2008 contract, reflecting a change in

the contract’s payment terms from seven, to five percent, of the account balance.

The e-mail also contained a post-dated invoice in which Telfair purported to bill

the Institute for his administration of the MLP through June 30, 2008. Thereafter,

on June 28, 2008, Nixon wrote Telfair a check representing five percent of the

CCEDI-FAMU account balance, pursuant to the invoice under the new contract.

Ultimately, Nixon wrote Telfair two checks from the “CCEDI-FAMU Urban

Policy Grant” account, which together totaled an amount exactly equal to seven

percent of the balance of the grant account. Based on this, the evidence was

sufficient for a reasonable jury to conclude that Telfair and Nixon created a false

contract with the Institute, as well as an invoice pursuant to the “contract,” in

order legitimize Telfair’s theft of funds he knew belonged to FAMU. Moreover, if

the money already belonged to Telfair under the CSA, as he asserts on appeal, he

                                          10
would not have needed to create the contract under which he invoiced the Institute

in order to “justify” his taking the funds

      The evidence further supported that Telfair and Nixon created two more

fraudulent contracts in an attempt to facilitate and conceal their theft of funds they

knew belonged to FAMU. The evidence showed that, at some point, Telfair and

Nixon signed the “addendum” referring to Telfair and Nixon as “plan

administrators” and providing that they were “responsible for the day-to-day

administration of the Micro-Loan Program as independent contractors,” for which

they were “eligible to collect administrative fees from the balance remaining.”

Also, in November 2008, Telfair and Nixon signed a “personal services contract,”

under which Nixon was to work in conjunction with Telfair to monitor the existing

MLP and develop new programs. Payment for these services was to come from

“administration and/or pool funds remaining after the liquidation of any loan

offsets, charge-offs.” Approximately 1 month later, Telfair and Nixon wrote

checks to one another for $60,067.55, which they each deposited into their

personal bank accounts.

      The evidence supported that these contracts involved (1) duplication of

products and services, which were largely unnecessary, or had already been

completed or authorized under previous contracts; (2) payment of an amount that

                                             11
was inconsistent with the value of the services provided; and (3) vague obligation

and payment terms. Accordingly, taking the evidence in the light most favorable

to the government, the evidence was sufficient for a reasonable jury to conclude

that Telfair and Nixon conspired to steal and actually stole at least $134,000.00 in

grant funds belonging to FAMU. Moreover, as discussed above, if the money

remaining in the CCEDI-FAMU account already belonged to Telfair under the

CSA, as he argues on appeal, Telfair and Nixon would not have had to draft these

“contracts” in an attempt to establish their right to the funds.

      As to Telfair’s argument that the government failed to prove certain

elements of each of the crimes charged, as discussed below, the record indicates

that there was sufficient evidence as to each of those essential elements such that a

reasonable jury could find that Telfair was guilty beyond a reasonable doubt.

      As to the conviction for conspiracy to steal funds from FAMU, Telfair’s

argument that he could not conspire to steal funds that belonged to him fails

because, as discussed above, the evidence was sufficient for a reasonable jury to

conclude that the funds at issue did not belong to Telfair. Moreover, as previously

discussed, there was sufficient evidence that Telfair and Nixon conspired to create

contracts purporting to establish their entitlement to funds that they knew did not

belong to them, and that they wrote checks to one another in order to obtain those

                                          12
funds.

         As to Telfair’s argument that the evidence was insufficient to prove that he

conspired with Nixon to commit wire fraud, the evidence showed that Telfair sent

two e-mails to Nixon in order to facilitate the fraudulent scheme to steal FAMU’s

funds. As discussed above, the first e-mail transmitted the fraudulent June 24,

2008, contract and the invoice billing the Institute for Telfair’s services, through

which Telfair and Nixon attempted to legitimize their theft of FAMU’s grant

funds. Additionally, in the second e-mail, Telfair asked Nixon for the FAMU

Small Business Development Center’s TIN, with which Telfair also sought to

legitimize his fraudulent activity. Accordingly, these e-mails were sufficient

evidence on which a reasonable jury could conclude that Telfair conspired with

Nixon to commit wire fraud, as he caused to be transmitted in interstate commerce

communications by wire for the purpose of executing a fraudulent scheme to steal

funds belonging to FAMU. 18 U.S.C. § 1343.

         As to Telfair’s conviction for stealing funds belonging to FAMU, the

evidence was sufficient for a reasonable jury to conclude that the funds belonged

to FAMU. Contrary to Telfair’s assertions, as previously discussed, the evidence

was sufficient to establish that the $150,000.00 belonged to FAMU, as opposed to

any other entity, including Telfair. Taking the evidence in the light most favorable

                                           13
to the government, HUD originally awarded the grant money to FAMU. Pursuant

to the grant agreement, FAMU contracted with FAMU FCU to establish the MLP.

Then, FAMU entrusted FAMU FCU with the funds in order to secure loans

FAMU FCU provided under the MLP. The $150,000.00 check at issue was drawn

from FAMU’s account, and it was deposited into FAMU’s grant account at FAMU

FCU. There was no evidence that the $150,000.00 was used to cover defaulted

micro-loans such that FAMU FCU was entitled to the money, and as previously

discussed, sufficient evidence supported that Telfair and Nixon in fact stole the

funds in question. Accordingly, the evidence was sufficient for a reasonable jury

to find that the funds rightfully belonged to FAMU, which had entrusted the funds

to the care of FAMU FCU before the funds were stolen.

      As to Telfair’s argument that the government failed to prove that he was

acting as an agent of FAMU, the argument fails because the evidence supported

that (1) Telfair was authorized to act on behalf of FAMU in administering the

MLP, including using FAMU’s money to secure micro-loans which Telfair

informed loan recipients were FAMU micro-loans; (2) Telfair held himself out as

the administrator of the MLP for FAMU; (3) Telfair was authorized to sign and

did sign a contract on behalf of FAMU for the virtual incubator, wherein Telfair

was listed as the micro-loan Administrator “representing, and for the benefit of,

                                         14
the INSTITUTE” at FAMU. Because 18 U.S.C. § 666(d)(1) specifically provides

that a representative is an agent, the evidence was sufficient for a reasonable jury

to find that Telfair acted as an agent of FAMU.

      Regarding Telfair’s conviction for stealing funds as a credit union

employee, Telfair argues that the government failed to prove that he “knowingly

and willfully” stole the funds entrusted to the care of FAMU FCU, because he was

contractually entitled to the $150,000.00. However, as discussed above, there

was sufficient evidence on which a reasonable jury could rely to conclude that

Telfair was not entitled to the $150,000.00 payment, and further, that he

knowingly and willfully stole those funds. Taking the evidence in the light most

favorable to the government, the evidence showed that the $150,000.00 FAMU

entrusted to the care of FAMU FCU remained in the grant account, and because

Telfair knew that he could not withdraw the funds belonging to FAMU FCU, he

conspired with Nixon to draft three contracts purporting to establish Telfair’s and

Nixon’s right to the funds, and then they wrote checks to one another from the

grant account. The evidence supports the conclusion that those contracts would

have been unnecessary if the funds already belonged to Telfair, or even if he had a

good faith belief that they did. Instead, Telfair presented to Hursey the

“addendum” that he and Nixon had signed in order to try and convince her that the

                                         15
funds were his. Telfair even told Hursey that the grant account was his, after he

had changed the account’s TIN to his SSN, and caused the account’s signature

cards to be changed so that he and Nixon could write one another checks from the

grant account. Accordingly, the evidence was sufficient to establish that Telfair

knowingly and willfully stole money entrusted to FAMU FCU.

         Additionally, the evidence was sufficient to establish that Telfair intended

to injure or defraud FAMU FCU, as the evidence showed that FAMU FCU

approved of Telfair’s administration of the MLP, and his receipt of fees, but not of

his theft of over $134,000.00 in grant funds FAMU had entrusted to its care.

Accordingly, the evidence was sufficient for a reasonable jury to conclude that

Telfair’s knowing and willful theft of funds entitled to FAMU FCU’s care was

consistent with an intent to injure and defraud. Accordingly, we affirm as to this

issue.

         Because the evidence was sufficient for a reasonable jury to conclude that

the $150,000.00 did not belong to Telfair, and that he and Nixon conspired to steal

and actually stole at least $134,000.00 from the grant account, this Court should

affirm as to this issue.



         II.   The loss amount attributed to Telfair at sentencing under

                                           16
             U.S.S.G. § 2B1.1(b)(1)

      Regarding the amount of loss attributed to him at sentencing, Telfair argues

that the actual loss should have been $32,179.66, which represents the

$150,000.00 in grant funds at issue, minus $51,149.62 for legitimate withdrawals,

and $66,670.72 for funds Telfair and his codefendant pledged towards restitution.

Accordingly, because the loss amount should have been $32,179.66, there should

only have been a 6-level increase to his base offense level under § 2B1.1(b)(1),

instead of the 10-level increase the district court applied.

      We review the district court’s fraud loss calculation at sentencing for clear

error. United States v. Renick, 273 F.3d 1009, 1025 (11th Cir. 2001). Pursuant to

U.S.S.G. § 2B1.1(b)(1), if the loss amount from a fraud was more than

$120,000.00, but not more than $200,000.00, the offense level is increased by 10

levels. The district court must make a reasonable estimate of the loss amount,

which is the greater of the actual loss or the intended loss. United States v.

Hoffman-Vaile, 568 F.3d 1335, 1343 (11th Cir. 2009) (citing U.S.S.G. § 2B1.1,

comment (n.3(A))). The Guidelines define the “actual loss” as “the reasonably

foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1,

comment. (n.3(A)(i)). In calculating the loss amount, the commentary to § 2B1.1

states that the loss shall be reduced by “[t]he money returned, and the fair market

                                          17
value of the property returned and the services rendered, by the defendant or other

persons acting jointly with the defendant, to the victim before the offense was

detected.” U.S.S.G. § 2B1.1, comment. (n.3(E)(i)). The district court’s estimate

of the loss need only be reasonable. Renick, 273 F.3d at 1025; U.S.S.G. § 2B1.1,

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

the evidence and estimate the loss based upon that evidence, the district court’s

loss determination is entitled to appropriate deference. See U.S.S.G. § 2B1.1,

comment. (n.3(C)); see also United States v. Miller, 188 F.3d 1312, 1317 (11th

Cir. 1999).

      Here, the district court did not clearly err when it determined that Telfair

was responsible for an actual loss between $120,000.00 and $200,000.00, and

thus, that the 10-level enhancement was appropriate. Based on the findings of the

jury, which as previously discussed, were supported by sufficient evidence, as well

as the PSI and the evidence presented at sentencing, the district court’s

determination of the loss attributable to Telfair is a reasonable estimate of the loss,

and thus not clearly erroneous.

      First, as discussed above, the evidence supports the district court’s finding

that Telfair and Nixon stole at least $134,000.00 in grant funds belonging to

FAMU, as they knowingly deposited 4 checks from FAMU’s grant account,

                                          18
totaling approximately $134,000.00, into their own personal bank accounts, even

though they knew that they were not entitled to the money. Next, the evidence

supports the finding of the district court that a total of at least $300,000.00 in grant

funds was deposited into the account, all of which Telfair and Nixon could have

stolen. As such, the district court properly rejected Telfair’s assertion that the

baseline for calculating the loss amount was the $150,000.00 check Telfair argued

that he was entitled to. Accordingly, the district court properly rejected Telfair’s

assertion that the loss amount should have been reduced by the amount of

legitimate withdrawals from the account, as account funds other than those Telfair

and Nixon stole were available to cover those legitimate withdrawals. Moreover,

the district court correctly pointed out that the evidence showed that there were

cancelled checks in the amount that Telfair and Nixon stole from the account,

which was approximately $134,000.00, regardless of whether any other

withdrawals were legitimate. Finally, the district court correctly rejected Telfair’s

assertion that the loss amount should be reduced by the amount Telfair and Nixon

pledged in restitution, because the Guidelines suggest that the loss amount shall

only be reduced by the money returned before the offense was detected.

U.S.S.G. § 2B1.1, comment. (n.3(E)(i)). Accordingly, because there is no

evidence that Telfair or Nixon returned any money before their offenses were

                                          19
detected, we affirm as to this issue.


      III.   The two-level enhancement pursuant to U.S.S.G. § 3B1.3 for
             abusing a position of trust

      Telfair asserts that he should not have received a two-level increase for

abusing a position of trust under § 3B1.3, because he did not abuse a position of

trust with respect to FAMU, which was the victim in the case. Telfair asserts that

any abuse of his position as president of FAMU FCU did not affect FAMU.

Further, his position did not aid or conceal his offense. Finally, Telfair argues that

the enhancement should not be applied so broadly that it includes every instance

of fraud.

      We review for clear error a district court’s factual determination at

sentencing that a defendant abused a position of trust, but we review de novo the

district court’s resolution of the legal issue of whether the defendant’s conduct

justifies the abuse-of-trust enhancement. United States v. Garrison, 133 F.3d 831,

837 (11th Cir. 1998). A defendant is subject to a two-level enhancement of his

offense level at sentencing if he “abused a position of public or private trust, or

used a special skill, in a manner that significantly facilitated the commission or

concealment of the offense.” U.S.S.G. § 3B1.3. A position of trust is

characterized by professional or managerial discretion, and a person occupying a

                                          20
position of trust ordinarily receives less supervision than an employee whose

responsibilities are non-discretionary in nature. U.S.S.G. § 3B1.3 comment. (n.1).

In order for the abuse-of-trust enhancement to apply, the defendant must have

been in a position of trust with respect to the victim of the crime. Garrison, 133

F.3d at 837. Thus, the defendant must have “abused discretionary authority

entrusted to [him] by the victim.” Id. at 839 (quotation and emphasis omitted).

“The determination of whether a defendant occupied a position of trust is

extremely fact sensitive.” United States v. Ghertler, 605 F.3d 1256, 1264 (11th

Cir. 2010) (quotation omitted). “The relationship between the defendant and the

victim must be more significant than that of an arm’s-length business transaction.”

United States v. Harness, 180 F.3d 1232, 1236 (11th Cir.1999). In the fraud

context, § 3B1.3 applies where, among other situations, a fiduciary or personal

trust relationship exists with another entity or entities and the defendant takes

advantage of the relationship to perpetrate or conceal the offense. Garrison, 133

F.3d at 837-38.

      Here, the district court did not clearly err when it determined that Telfair

occupied a position of trust with FAMU, which he used to commit his crimes and

conceal them, and thus the two-level enhancement for abuse of a position of trust

was appropriate. First, the district court did not clearly err in finding that Telfair

                                           21
occupied a position of trust with respect to the victim in this case, which was

FAMU, because the evidence showed that FAMU gave Telfair discretion to

administer and run the MLP, and to disburse its grant funds. The district court

also did not clearly err in determining that Telfair’s position of trust with respect

to FAMU involved a significant amount of managerial discretion, as Telfair was

responsible for developing and administering the MLP, including determining

who qualified for the micro-loans and actually disbursing FAMU’s grant funds. A

review of the record also indicates that Telfair was an agent and representative of

FAMU, as he had authority to contract on its behalf. Additionally, it appears that

(1) Telfair made changes to the account and maintained the records regarding the

status of the loans, and (2) as a signatory on the account, Telfair determined

whether FAMU’s grant money, which was held in an account at the credit union

where Telfair was President, would be used to cover defaulted loans. The

evidence also showed that FAMU placed such extreme trust in Telfair, despite the

concerns of the AGO, that it essentially took him at his word when he told FAMU

that the account holding its remaining grants funds actually belonged to him.

Thus, the district court did not clearly err in finding that Telfair abused his

position of trust with FAMU in order to commit his crimes and conceal them, and

it correctly applied the enhancement under § 3B1.3. Accordingly, we affirm as to

                                          22
this issue.

                                    Conclusion

       The evidence was sufficient for a reasonable jury to find Telfair guilty on

each of the charged offenses. Also, the district court calculated a reasonable fraud

loss amount, and it did not clearly err in concluding that the two-level

enhancement for abuse of a position of trust was appropriate in this case.

Accordingly, we affirm Telfair’s convictions and sentences.

       AFFIRMED.




                                         23
