           Case: 12-16300    Date Filed: 12/11/2013   Page: 1 of 6


                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16300
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:11-cr-00081-WKW-WC-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                   versus



ROKENBERT CALVIN MARTIN,

                                                          Defendant-Appellant.

                      ________________________

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

                            (December 11, 2013)

Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      Rokenbert Calvin Martin appeals his total 87-month sentence after pleading

guilty to one count of conspiracy to commit mail fraud in violation of 18 U.S.C. §

1349, one count of aiding and abetting mail fraud in violation of 18 U.SC. §§ 1341

and 2, one count of aggravated identity theft in violation of 18 U.S.C. §

1028A(a)(1), and one count of possession of a stolen motor vehicle in violation of

18 U.S.C. § 2313(a). On appeal, Martin argues that: (1) the district court erred in

failing to reduce his sentence for acceptance of responsibility; (2) the district court

erred in failing to address pending objections to the Presentence Investigation

Report (“PSI”); (3) the district court plainly erred in its determination of the

amount of intended loss; (4) the district court plainly erred in its application of a

sophisticated means enhancement; and (5) his counsel was ineffective at the

sentencing hearing.     The government filed a motion for partial dismissal of

Martin’s appeal, arguing that a sentence appeal waiver barred Martin’s first two

claims. After thorough review, we grant the government’s motion for partial

dismissal, affirm in part, and dismiss in part.

      We review the validity of a sentence appeal waiver de novo. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). When an objection is not timely

made in the district court, we review for plain error. United States v. Rodriguez,

398 F.3d 1291, 1298 (11th Cir. 2005). In order to establish plain error: (1) there

must be error (2) that is plain and (3) affects substantial rights. Id. If all three


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conditions are met, then we may exercise our discretion to correct an error if (4)

the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

      First, we agree with the government that the sentence appeal waiver in

Martin’s plea agreement bars his challenges to the district court’s denial of the

acceptance of responsibility reduction and to its treatment of his objections to the

PSI. A sentence appeal waiver made knowingly and voluntarily will be enforced.

United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). To establish

that it was made knowingly and voluntarily, the government must show either that

(1) the district court specifically questioned the defendant about the waiver during

the plea colloquy, or (2) the record makes clear that the defendant otherwise

understood the full significance of the waiver. Id. “An appeal waiver includes the

waiver of the right to appeal difficult or debatable legal issues or even blatant

error.” United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005).

      Here, the sentence appeal waiver provided that “the defendant knowingly

and voluntarily waives any and all of his rights under 18 U.S.C. § 3742 to appeal

the sentence . . . . [and] further expressly waives his right to appeal the conviction

and sentence on any other ground, including any challenge to the reasonableness of

the sentence, and waives the right to attack the sentence in any post-conviction

proceeding.” Martin argues that the government did not uphold its end of the plea


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agreement concerning the acceptance of responsibility reduction, but instead of

challenging the validity of the plea agreement, he argues that the sentence appeal

waiver should not be enforced to bar this claim. However, because Martin’s

sentence appeal waiver was made knowingly and voluntarily, it is enforceable.

Bushert, 997 F.2d at 1351.     Furthermore, neither the district court’s denial of a

reduction for acceptance of responsibility nor the district court’s failure to address

objections to the PSI fall within any of the exceptions to the sentence appeal

waiver. We therefore grant the government’s motion for partial dismissal of the

appeal, and dismiss Martin’s first two claims.

      Next, we reject Martin’s claims concerning the intended loss amount and the

sophisticated means enhancement. The Guidelines do not require the district court

to make a precise fraud loss determination, but only require it to make a reasonable

estimate of the loss, given the available information. United States v. Barrington,

648 F.3d 1178, 1197 (11th Cir. 2011), cert. denied, 132 S.Ct. 1066 (2012). The

loss calculation must be supported with reliable and specific evidence. United

States v. Munoz, 430 F.3d 1357, 1370 (11th Cir. 2005).             According to the

Guidelines Commentary, “loss” is the greater of “actual loss” or “intended loss.”

U.S.S.G. § 2B1.1, comment. n.3(A); United States v. Bradley, 644 F.3d 1213,

1289 (11th Cir. 2011). “Intended loss” is the “pecuniary harm that was intended to

result from the offense,” even if impossible or unlikely to occur. U.S.S.G. §


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2B1.1, comment. n.3(A)(ii); Bradley, 644 F.3d at 1289. A defendant’s intent must

often be inferred from circumstantial evidence. United States v. Willis, 560 F.3d

1246, 1250 (11th Cir. 2009).

      Section 2B1.1(b)(10)(C) of the Sentencing Guidelines provides a two-level

enhancement if the offense involved “sophisticated means.” U.S.S.G. §

2B1.1(b)(10)(C). The commentary defines “sophisticated means” as “especially

complex or especially intricate offense conduct” that pertains to executing or

concealing the offense. Id. § 2B1.1(b), comment. (n. 9(B)). Each of a defendant’s

individual actions need not be sophisticated to impose the § 2B1.1(b)(10)(C)

enhancement, provided that the totality of the scheme was sophisticated. United

States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010).

      Because Martin failed to object at the sentencing hearing to the intended loss

amount and the sophisticated means enhancement, we evaluate these issues for

plain error, and find none. As for Martin’s argument that the total value of the

intended loss is incorrect, there is no reversible error because even if Martin is

correct, the alleged error that he cites benefits him, and therefore, does not affect

his substantial rights. Rodriguez, 398 F.3d at 1298. As for Martin’s arguments

that the values for specific vehicles should not have been included in the lost

determination, the evidence shows that Martin intended pecuniary harm through

his conduct in connection with each of the vehicles, and the values used in the


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determination were a reasonable estimate of the intended loss. Finally, as for his

argument concerning sophisticated means, the record shows that Martin’s scheme

was complicated in nature, included many steps, and involved significant steps

taken to cloak fraudulent conduct in seemingly legitimate activities. Accordingly,

we find no plain error concerning these issues and affirm.

      We also reject his ineffective assistance of counsel claim. Generally, we

will not review a claim of ineffective assistance of counsel raised on direct appeal

where the district court neither addressed that claim nor developed a factual record.

United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002); see also Massaro v.

United States, 538 U.S. 500, 504-05 (2003) (noting that it is usually preferable to

address ineffective assistance of counsel claims on collateral review rather than on

direct appeal). Here, Martin did not raise an ineffective assistance claim before the

district court and the record is not sufficiently developed for consideration of this

issue on appeal. In particular, the record provides no indication as to the reasons

that counsel made the decisions that she did. Accordingly, we dismiss this claim.

      AFFIRMED IN PART; DISMISSED IN PART.




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