                                                     [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                           No. 10-14186                  APRIL 2, 2012
                       Non-Argument Calendar              JOHN LEY
                     ________________________              CLERK


             D.C. Docket No. 6:09-cr-00068-BAE-GRS-3



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,


                               versus

JOHN R. THOMPSON,

                                                     Defendant-Appellant.



                     ________________________

             Appeal from the United States District Court
                for the Southern District of Georgia
                   ________________________
                           (April 2, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:

      John R. Thompson appeals his convictions and sentences for bank fraud,

wire fraud, and mail fraud, as well as conspiracy to commit bank, wire, and mail

fraud. Thompson argues that the district court erred in (1) denying his motion for

a new trial based on his claim of ineffective assistance of counsel, (2) calculating

the total attributable loss amount at sentencing, (3) enhancing his sentence for

targeting a vulnerable victim under U.S.S.G. § 3A1.1, and (4) applying an

obstruction of justice sentence enhancement, pursuant to U.S.S.G. § 3C1.1, upon

finding that Thompson committed perjury at trial.

                                I. BACKGROUND

      Thompson was an attorney in Swainsboro, Georgia, who frequently advised

Brian Steptoe, an owner of a construction company, and his wife, Natasha Steptoe,

on a variety of real estate issues. The Steptoes’ business consisted of purchasing

parcels of land with investors and building homes on them for sale.

      According to trial testimony, the Steptoes, with financing from various

investors, purchased land located at 54 Spivey Lane in Swainsboro and began

construction on a home. Shortly after they completed the home in mid-2007,


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Brian Steptoe enlisted Hurlon Wadley, an individual who was legally disabled and

could not read or write, to unwittingly purchase the property. Without Wadley’s

consent, Thompson falsified information on a HUD-1 Form,1 so that Wadley

would receive a home mortgage loan from Bank of America (BOA) for the

purchase of 54 Spivey Lane. Based on the fraudulent HUD-1 Form prepared by

Thompson, BOA approved the loan.

       Following an investigation, a grand jury returned a five-count second

superceding indictment in June 2010. At trial, a jury convicted Thompson of

bank, wire, and mail fraud, and conspiracy to do the same.

                                      II. DISCUSSION

A. Motion for a New Trial

       Thompson argues that the district court erred in denying his motion for a

new trial based on ineffective assistance of counsel. We review the denial of a

motion for a new trial for abuse of discretion. United States v. Hernandez, 433

F.3d 1328, 1332 (11th Cir. 2005). To prevail on an ineffective assistance claim, a

defendant must demonstrate both that (1) his counsel’s performance was deficient,



       1
          “The Housing and Urban Development-1 (‘HUD-1') statement is a settlement form
used in closing a property sale; it details the costs and fees associated with a mortgage loan.”
United States v. Hill, 643 F.3d 807, 820 n.1 (11th Cir. 2011).

                                                 3
and (2) the deficient performance prejudiced his defense.2 Strickland v.

Washington, 466 U.S. 668, 687 (1984) .

       In this case, Thompson argues his trial counsel performed deficiently in

handling a motion for acquittal at the close of evidence at trial. According to

Thompson, his trial counsel orally raised a motion for acquittal on all counts but

argued only the merits of the motion as it related to Count Two of the indictment.

Because his counsel completely neglected the remaining four counts, Thompson

contends that the district court misconstrued the motion as seeking acquittal as to

Count Two only. His counsel purportedly compounded the effects of his deficient

performance by failing to reassert the motion in its entirety when the district court

moved on without specifically addressing the other counts. Thompson claims that

this allegedly deficient performance was prejudicial to his defense because it

deprived him of (1) the possibility that the district court would have acquitted him

on all counts, and (2) the opportunity to appeal an adverse ruling–in the event the

district court denied the motion–addressing all of the remaining counts underlying

the conviction.



       2
          This Court does not address claims for ineffective assistance of counsel on direct
appeal, “[e]xcept in the rare instance when the record is sufficiently developed.” United States v.
Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). Here, the record is sufficiently developed for
the purpose of addressing Thompson’s claim.

                                                4
      Thompson’s argument fails because it falls well-short of showing that the

claimed deficient performance prejudiced his defense. To establish prejudice, the

defendant “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. Thompson first contends that

counsel’s failure to argue for acquittal on all counts prejudiced his defense

because but for the deficient performance, “it is probable that . . . the [district

court] may have very well entertained a different disposition to the motion for

acquittal than ultimately resulted.” In so arguing, Thompson provides no specifics

to support his conclusory and entirely speculative position. Moreover, the

contention that it is “probable” the district court “may” have considered a different

disposition does not establish a “reasonable probability” that the outcome at trial

would have been different.

      Thompson next argues that his trial counsel’s deficient performance

prejudiced his defense because the failure to fully argue the motion for acquittal

leaves him without an appealable adverse ruling on the remaining counts. In this

Circuit, however, “when the claimed error of counsel occurred at the guilt stage of

a trial (instead of on appeal) we [] gauge prejudice against the outcome of the trial:

                                            5
whether there is a reasonable probability of a different result at trial, not on

appeal.” Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006). While he

acknowledges that his counsel’s purported error occurred at trial, Thompson

presents no argument as to why the error’s prejudicial impact should be measured

with reference to his appeal, rather than in accordance with our general rule.3 We

therefore find that Thompson has failed to demonstrate prejudice and conclude

that the district court did not err in denying the motion for a new trial.

B. Calculation of Loss Attributable

       Thompson argues that the district court erred in calculating the total loss

attributable to his criminal conduct at sentencing. Under U.S.S.G. § 2B1.1(b)(1),

a defendant’s total offense level is increased by 14 levels if the offense involved a

loss between $400,000 and $1,000,000. U.S.S.G. § 2B1.1(b)(1)(H). The district

court in this case calculated the applicable guideline range of 70 to 87 months

based on a total loss amount attributable of $434,597.54, after finding that BOA

lost $319,800 and investors Justin Jay and Bruce Lyons lost $71,597.54 and

       3
          Although we typically look to the outcome of the trial in determining whether an
attorney’s error at trial was prejudicial, we have recognized a narrow exception for cases in
which “the only effect of trial counsel’s negligence was on [the defendant’s] appeal.” Davis v.
Sec’y for Dep’t of Corr., 341 F.3d 1310, 1315 (11th Cir. 2003) (emphasis omitted). Thompson
does not argue that this case falls under this exception. We note, however, that even if the
exception applied, Thompson’s argument would fail because he does not make the necessary
showing of a “reasonable likelihood of a more favorable outcome on appeal” had the mistake not
occurred. Id. at 1316.

                                               6
$43,200, respectively. Although the district court imposed a below-range sentence

of 66 months, Thompson challenges the factual findings underlying the calculation

of BOA’s and Jay’s losses.

       The district court’s factual findings for purposes of sentencing may be based

on, among other things, evidence heard during trial, undisputed statements in the

Presentence Investigation Reports (PSIs), or evidence presented during the

sentencing hearing. United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir.

2006). The government bears the burden of establishing by a preponderance of the

evidence any disputed fact necessary to support a sentence enhancement. United

States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir. 1996). The government meets

this burden “by presenting reliable and specific evidence.” Id.

       Thompson first argues that the district court erred in failing to reduce

BOA’s loss–here, the amount of the loan–by the correct fair market value of 54

Spivey Lane, the collateral on the loan that BOA recovered.4 According to the

PSI, the fair market value of 54 Spivey Lane was $132,900. At sentencing,



       4
          Where a victimized lender, like BOA in this case, recovers collateral from the
defendant, the loss must be reduced by “the amount the victim has recovered at the time of
sentencing from disposition of the collateral, or if the collateral has not been disposed of by that
time, the fair market value of the collateral at the time of sentencing.” U.S.S.G. § 2B1.1,
comment. (n.3(E)(ii)).


                                                  7
however, the Government argued that the actual fair market value was $81,800

because BOA had reached an agreement with a buyer to sell the property for that

price.

         While we have recognized that the sentencing court “is in the best position

to assess the evidence and estimate the loss based upon that evidence,” the

estimate “may not be mere speculation and the government bears the burden of

supporting its loss calculation with reliable and specific evidence.” United States

v. Gupta, 463 F.3d 1182, 1200 (11th Cir. 2006) (citation omitted). Here, the

Government provided no evidence, much less reliable and specific evidence, in

support of its assertion that 54 Spivey Lane’s fair market value was $81,800.

When the district court asked if a copy of the purported sales contract was

available, the Government responded that it did not have a copy of the contract but

would supplement the record with one. The Government’s brief on appeal,

however, does not reference any supplemental evidence. Moreover, our review of

the district court docket indicates that the sales contract did not become part of the

record. As a result, we are aware of no evidence that could have provided a

factual basis for the district court’s determination of 54 Spivey Lane’s fair market

value.




                                           8
       Thompson also argues that the district court erred in counting Jay’s losses

as part of the loss attributable calculation. He contends that even though he

objected to the portion of the PSI detailing Jay’s losses, the Government failed to

present evidence at sentencing establishing that Jay was a victim and confirming

that Jay’s loss amount is $71,597.54.

       Thompson is only partially correct. The district court did not err in finding

that Jay was a victim, despite the lack of evidence at sentencing, because there was

sufficient supporting evidence presented at trial, including Jay’s own testimony.

Hamaker, 455 F.3d at 1338. The district court did err, however, in adopting the

disputed statements in the PSI regarding the amount of Jay’s loss without having

received any supporting evidence at trial or sentencing from the government.5

Because the district court calculated the total loss amount attributable to

Thompson’s conduct without proper factual bases, we remand to allow the district

court to receive evidence of 54 Spivey Lane’s fair market value, as well as Jay’s

loss amount.6


       5
         In its brief, the government responds to Thompson by merely summarizing the
procedures it used to compile the PSI’s disputed facts. It does not identify any evidence
supporting Jay’s loss amount.
       6
           Where a district court misapplies the sentencing guidelines, we need not remand if the
district court’s errors are harmless. Williams v. United States, 503 U.S. 193, 203 (1992). Here,
although the district court imposed a sentence falling below the guideline range to give
Thompson “some credit” for the low valuation of 54 Spivey Lane, we cannot conclude, and the

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C. Vulnerable Victim Enhancement

       Thompson argues the district court erred in finding that Hurlon Wadley was

a vulnerable victim under the sentencing guidelines.7 U.S.S.G. § 3A1.1(b)(1)

provides a two-level sentence enhancement for cases in which a defendant knew

or should have known that an offense targeted a “vulnerable victim.” A

“vulnerable victim” is one “who is unusually vulnerable due to age, physical or

mental condition, or who is otherwise particularly susceptible to the criminal

conduct.” Id., comment. (n.2).

       Thompson contends that the district court erred in applying the vulnerable

victim enhancement because (1) Wadley was not a victim, but a co-conspirator;

(2) Wadley was not particularly vulnerable to fraud; and (3) Thompson did not

recruit Wadley into the scheme. Contrary to Thompson’s position, however, the

Government presented ample evidence, including testimony from Wadley and

Brian Steptoe, indicating that Wadley was an unwitting victim of Thompson’s

scheme.




government does not argue, that the district court would have imposed the same sentence
irrespective of its errors.
       7
          The district court’s determination of a victim’s vulnerability is “essentially a factual
finding to which we give due deference.” United States v. Amedeo, 370 F.3d 1305, 1317 (11th
Cir. 2004).

                                                 10
      As to Wadley’s particular vulnerability, Thompson argues that United States

v. Grant, 320 F. App’x 898 (11th Cir. 2008) (unpublished), should guide our

analysis. In Grant, we found there was insufficient evidence to support a

vulnerable victim enhancement, where the victim at issue was 67 years old, had

bad hearing, and had received only a grammar school education, but was not

“otherwise unusually vulnerable.” Id. at 909-10. Wadley, unlike the victim in

Grant, suffers from a diminished mental capacity that renders him unable to read

or write, accomplish day-to-day tasks, work, and pay bills on his own. The district

court, citing Wadley’s testimony, expressed doubt regarding whether Wadley had

any ability to reason. Thus, aside from the fact that Grant is a non-binding,

unpublished opinion, Thompson’s reliance on Grant is misplaced because

Wadley’s mental infirmities make him far more vulnerable to fraud than the victim

considered in Grant.

      Thompson also argues that the enhancement should not apply because

Steptoe alone recruited Wadley into the scheme. Typically, the vulnerable victim

enhancement is appropriate only where the defendant specifically targeted the

victim based on an apparent vulnerability. United States v. Arguedas, 86 F.3d

1054, 1058 (11th Cir.1996). In a conspiracy offense, however, the defendant is

accountable for relevant conduct, which includes any reasonably foreseeable

                                         11
conduct undertaken by others in furtherance of the conspiracy. See U.S.S.G.

§ 3A1.1 comment (n.2); U.S.S.G. § 1B1.3(a). Here, Thompson was convicted of

a conspiracy offense and does not argue that Steptoe’s recruitment of Wadley was

not reasonably foreseeable conduct taken in furtherance of the underlying

conspiracy. Accordingly, we find the district court did not err in applying the

enhancement based on Wadley’s status as a vulnerable victim.

D. Obstruction of Justice Enhancement

      Thompson argues the district court erred in applying an obstruction of

justice enhancement, pursuant to U.S.S.G. § 3C1.1, based on his alleged perjury at

trial. Thompson contends that the district court never made specific factual

findings regarding the perjury and that the government failed to prove that

Thompson made false statements with the willful intent to deceive.

      “We review for clear error the district court’s factual findings necessary for

an obstruction of justice enhancement based on perjury” and “accord great

deference to the district court’s credibility determinations.” United States v.

Singh, 291 F.3d 756, 763 (11th Cir. 2002). Although a district court should

typically make “specific findings as to each alleged instance of obstruction by

identifying the materially false statements individually,” a “general finding that an

enhancement is warranted suffices if it encompasses all of the factual predicates

                                         12
necessary for a perjury finding.” Id. The necessary factual predicates are that

“(1) the testimony must be under oath or affirmation; (2) the testimony must be

false, (3) the testimony must be material; and (4) the testimony must be given with

the willful intent to provide false testimony and not as a result of a mistake,

confusion, or faulty memory.” Id. at 763 n.4.

      Here, the district court recited and adopted the facts in the PSI, which

specifically alleged Thompson committed perjury by testifying falsely under oath

that he did not make any false representation to BOA. The district court

accordingly made sufficient factual findings in applying the enhancement.

Moreover, contrary to Thompson’s argument, the district court did not clearly err

in finding that Thompson made false statements with the willful intent to deceive.

We defer to the district court’s assessment of Thompson’s credibility and note that

his trial testimony is irreconcilable with portions of the record, particularly Brian

Steptoe’s testimony, as well as the jury’s guilty verdict. We thus find the district

court did not clearly err in applying the obstruction of justice enhancement.

      CONVICTIONS AFFIRMED, VACATED AND REMANDED FOR

RESENTENCING.




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