             Case: 18-12825     Date Filed: 04/16/2019   Page: 1 of 11


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-12825
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:17-cr-00372-VMC-TGW-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

TYRONE DEVLIN,

                                                              Defendant-Appellant.

                          ________________________

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

                                 (April 16, 2019)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      For his participation in a fraudulent income-tax return scheme, Tyrone Devlin

was sentenced to prison for a total term of 116 months. He now appeals his sentence,
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raising challenges to the calculation of his guideline range and to the

constitutionality of judicial fact finding at sentencing.

                                           I.

      Devlin pled guilty to conspiracy to defraud the United States, in violation of

18 U.S.C. § 371 (Count 1); theft of government property, in violation of 18 U.S.C.

§ 641 (Count 2); access-device fraud, in violation of 18 U.S.C. § 1029(a)(3) (Count

3); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count 4).

      According to the presentence investigation report (“PSR”), Devlin and three

coconspirators perpetrated a fraudulent income-tax return scheme. Using stolen

personal identification information, including names, dates of birth, and social

security numbers, Devlin and his coconspirators submitted fraudulent tax returns in

others’ names and without their authorization and then pocketed the resulting

refunds. The refunds were transferred to reloadable debit cards, some of which had

been issued in the names of victims.

      Applying § 2B1.1 of the 2016 Guidelines Manual, the PSR calculated a total

offense level of 23 for Counts 1–3. Starting with a base offense level of 6, the PSR

applied a 16-level increase for an intended loss of $2,567,696, § 2B1.1(b)(1)(I); a 2-

level increase for 10 or more victims, § 2B1.1(b)(2)(A)(i); a 2-level increase for “the

unauthorized transfer or use of any means of identification unlawfully to produce or

obtain any other means of identification,” § 2B1.1(b)(11)(C)(i); and a 3-level


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reduction for acceptance of responsibility, § 3E1.1. Combined with a criminal-

history category of VI, Devlin’s resulting guideline range for Counts 1–3 was 92 to

115 months. Count 4, the aggravated-identity-theft offense, carried a mandatory

consecutive sentence of 24 months. See 18 U.S.C. § 1028A; U.S.S.G. § 2B1.6.

      Devlin objected to each of the enhancements and also argued that judicial fact

finding at sentencing violated his constitutional rights to have a jury determine the

facts essential to his sentence. At sentencing, the district court, after hearing

testimony from Devlin and a detective involved in the investigation of Devlin and

his coconspirators, overruled Devlin’s objections and sentenced him to concurrent

terms of 92 months as to Counts 2 and 3 and 60 months (the statutory maximum) as

to Count 1, plus a consecutive term of 24 months as to Count 4, for a total term of

116 months of imprisonment. Devlin now appeals.

                                         II.

      Ordinarily, we review a district court’s interpretation of the Sentencing

Guidelines de novo and its findings of fact, including its calculation of the loss

amount, for clear error. United States v. Presendieu, 880 F.3d 1228, 1245 n.9 (11th

Cir. 2018). Review for clear error is deferential, and we will not disturb a district

court’s findings unless we are left with a definite and firm conviction that a mistake

has been made. United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016).




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       Issues raised for the first time on appeal, however, are reviewed for plain error

only. United States v. Carroll, 886 F.3d 1347, 1351 (11th Cir. 2018). “Plain error

review requires a showing that (1) there was an error; (2) it was plain; (3) it affected

substantial rights; and (4) it seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” Id.

      A. Hearsay Evidence

      Devlin first argues that the district court erred in relying on unreliable hearsay

statements of a coconspirator regarding Devlin’s participation in the conspiracy.

Because Devlin did not object to the court’s utilization of hearsay testimony at

sentencing, we review this contention for plain error only.

      A sentencing court may consider any information, including hearsay,

regardless of its admissibility at trial, provided that: (1) “the evidence has sufficient

indicia of reliability;” (2) “the court makes explicit findings of fact as to credibility;”

and (3) “the defendant has an opportunity to rebut the evidence.” United States v.

Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010) (quotation marks omitted). “To

show that the evidence lacks minimal indicia of reliability a defendant must establish

(1) that the challenged evidence is materially false, and (2) that it actually served as

a basis for the sentence.” United States v. Bourne, 130 F.3d 1444, 1447 (11th Cir.

1997) (quotation marks omitted). The court’s failure to make explicit findings as to

reliability, however, “does not necessarily require reversal or remand where the


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reliability of the statements is apparent from the record.” United States v. Docampo,

573 F.3d 1091, 1098 (11th Cir. 2009) (quotation marks omitted).

      Here, the district court did not err—plainly or otherwise—by considering

hearsay statements from a coconspirator, Marquis Thornton, introduced through the

testimony of Detective Sharla Canfield. Even assuming the court in fact relied on

the hearsay in sentencing him, Devlin has not shown that the hearsay is false or

unreliable. Ample circumstantial evidence corroborated Thornton’s statements that

Devlin was involved in a broader conspiracy to file fraudulent income-tax returns—

that he saw Devlin personally file tax returns and that Devlin paid him to obtain

personal identification information—and not just, as Devlin himself testified, a

conspiracy to use a fraudulently obtained tax refund on one occasion.

      In particular, Canfield testified that Devlin, Thornton, Jason Collins, and one

other person were discovered in a hotel room containing 1,900 stolen “identifiers”

(names, dates of birth, social security numbers, and debit or credit card numbers),

74 prepaid debit cards, and 3 laptop computers with tax-filing software. The

identifiers were on ledgers, notebooks, and loose paper “strewn across the hotel

room.” Devlin’s fingerprints were found on some of these materials. One debit card

found in the hotel room had been used by Devlin at an ATM the day before the

search to withdraw fraudulent tax-refund money. The IRS had blocked nine other

fraudulently obtained refunds from being loaded onto that same card. Another debit


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card in Devlin’s name had been loaded with other fraudulently-obtained tax refunds.

In the months after the search of the hotel room, Devlin was found with additional

prepaid debit cards and identifiers during traffic stops. Collins was with Devlin

during one of these traffic stops.

      Given this corroborative evidence strongly suggesting that Devlin was

actively involved in the scheme to file fraudulent tax returns, Thornton’s hearsay

statements had sufficient indicia of reliability to be considered. While the hearsay

provided the only direct evidence that Devlin personally filed fraudulent tax returns,

the hearsay is entirely consistent with Canfield’s testimony, and, in any event,

whether Devlin personally filed a return is not essential to his knowing and active

participation in the conspiracy.     Furthermore, because the “reliability of the

statements is apparent from the record,” the court’s failure to make specific

reliability findings does not warrant reversal. See Docampo, 573 F.3d at 1098.

      Additionally, Devlin had the opportunity to rebut the evidence by cross-

examining Canfield and by testifying as to his own conduct, which he did. And the

court was entitled to discredit Devlin’s testimony disclaiming any knowledge of a

broader conspiracy and in fact conclude that the exact opposite was true. See United

States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (“[W]hen a defendant chooses to

testify, he runs the risk that if disbelieved [the factfinder] might conclude the




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opposite of his testimony is true.” (quotation marks omitted)). Accordingly, the

district court did not err by considering hearsay evidence at sentencing.

      B. Amount of Loss

      Devlin next contends that the loss amount of $2,567,696 is not supported by

the evidence presented at sentencing. He asserts that he should be held responsible

only for the amounts he actually obtained.

      Loss is based on a defendant’s “relevant conduct,” which includes Devlin’s

own actions and the actions of others that are reasonably foreseeable and in

furtherance of the jointly undertaken criminal activity. U.S.S.G. § 1B1.3(a)(1). The

2016 Guidelines instruct a district court to apply a 16-level enhancement when an

offense involving fraud or deceit results in loss exceeding $1.5 million.           Id.

§ 2B1.1(b)(1)(I). “[L]oss is the greater of actual or intended loss.” Id. § 2B1.1, cmt.

n.3(A). Intended loss means “the pecuniary harm that the defendant purposely

sought to inflict” and includes harm “that would have been impossible or unlikely

to occur.” Id. § 2B1.1, cmt. n.3(A)(ii). The court need only make a reasonable

estimate of the loss amount, but the loss amount cannot be based on speculation. Id.

§ 2B1.1, cmt. n.3(C); United States v. Medina, 485 F.3d 1291, 1304 (11th Cir. 2007).

The government bears the burden of proving loss with reliable and specific evidence.

Medina, 485 F.3d at 1304.




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       Here, the district court did not err by concluding that Devlin was responsible

for the intended loss of over $2 million. The loss amount of $2,567,696 was based

on two sources: (1) the amount of refunds claimed on fraudulent income-tax returns

filed during the scope of the conspiracy (May 2012 to August 2012) using the

personal identification information found in the hotel room; and (2) fraudulent

refunds directed to Devlin’s debit card. Although Devlin claims he was unaware of

a “broader conspiracy,” the district court reasonably inferred from the evidence

described above that Devlin and his coconspirators “worked together to file

fraudulent tax returns that, if fully paid out by the IRS, intended to cause total

pecuniary harm to the IRS in the amount of $2,567,696.” In other words, the court

did not clearly err in finding that the intended losses associated with the returns filed

using personal identification information found in the hotel room were reasonably

foreseeable and within the scope of jointly undertaken activity.

       C. Double Counting

       Devlin argues that the guideline applicable to aggravated-identity-theft

offenses, U.S.S.G. § 2B1.6, precluded the application of the enhancement under

U.S.S.G. § 2B1.1(b)(11)(C)(i). 1 We agree.



       1
           The government’s response focuses on U.S.S.G. § 2B1.1(b)(11)(B)(i), but that
enhancement wasn’t applied. Also, we disagree with the government that Devlin has abandoned
this issue on appeal. While his briefing is not a model of clarity, he devoted a discrete section of
his brief to the issue, he cited relevant authority, including § 2B1.6, cmt. n.2 and United States v.
Taylor, 818 F.3d 671 (11th Cir. 2016), and he made it clear enough that, as he argued below, the
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       Section § 2B1.1(b)(11)(C)(i) instructs courts to apply a two-level increase if

the offense involved “the unauthorized transfer or use of any means of identification

unlawfully to produce or obtain any other means of identification.” U.S.S.G.

§ 2B1.1(b)(11)(C)(i). “However, the text of § 2B1.6 of the Guidelines limits the

application of sentencing enhancements to an offense in the context of 18 U.S.C.

§ 1028A convictions.” United States v. Taylor, 818 F.3d 671, 674 (11th Cir. 2016).

       Under § 1028A, the court is required to impose a consecutive sentence of two

years of imprisonment. See 18 U.S.C. § 1028A. Application note 2 to § 2B1.6

explains that, to avoid double-counting relevant conduct, this required sentence may

limit the applicability of certain enhancements for the underlying offenses. See

U.S.S.G. § 2B1.6, cmt. n.2. Specifically, courts should not apply enhancements for

the “transfer, possession, or use of a means of identification.” Id.; see United States

v. Charles, 757 F.3d 1222, 1226–27 (11th Cir. 2014) (section § 2B1.6 bars

enhancement      for    “trafficking”     an       unauthorized     access    device   under

§ 2B1.1(b)(11)(B)(i)). Nevertheless, enhancements not based on the “transfer,

possession, or use of a means of identification,” such as the use of device-making

equipment, United States v. Cruz, 713 F.3d 600, 607–08 (11th Cir. 2013), or the




§ 2B1.1(b)(11)(B)(i) enhancement was improper because he had been convicted and sentenced for
aggravated identity theft under 18 U.S.C. § 1028A. We consider the matter properly raised.
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production of unauthorized access devices, Taylor, 818 F.3d at 676–77, are

permitted.

       Here, the district court erred in applying § 2B1.1(b)(11)(C)(i).          That

enhancement is based on the “transfer or use” of a “means of identification.”

U.S.S.G. § 2B1.1(b)(11)(C)(i). It therefore falls within the scope of § 2B1.6, which

bars application of enhancements based on the “transfer, possession or use of a

means of identification.” Id. § 2B1.6, cmt. n.2; Cruz, 713 F.3d at 607; accord United

States v. Gonzales, 844 F.3d 929, 933 (10th Cir. 2016) (“A proper occasion for using

application note 2 to § 2B1.6 would be when the sentencing court would otherwise

apply USSG § 2B1.1(b)(11)(C) . . . .”); United States v. Sharapka, 526 F.3d 58, 62

(1st   Cir.   2008)   (“Had    the    court     imposed   the   enhancement     under

§ 2B1.1(b)([11])(C)(i), then § 2B1.6 would preclude application of a two-level

enhancement.”). We therefore vacate and remand for resentencing without this

enhancement.

                                         III.

       Finally, Devlin argues that the district court erred by sentencing him based on

facts neither admitted in his guilty plea nor found by a jury. As he concedes, this

argument is foreclosed by binding precedent. See United States v. Charles, 757 F.3d

1225–26 (11th Cir. 2014) (“[A] district court may continue to make guidelines

calculations based upon judicial fact findings and may enhance a sentence—so long


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as its findings do not increase the statutory maximum or minimum authorized by

facts determined in a guilty plea or jury verdict.”). The court’s findings here were

proper because they did not increase the statutory minimum or maximum sentence

for any of Devlin’s convictions.

                                        IV.

      In sum, we affirm the district court in all respects but one: we hold that, in

light of § 2B1.6 and its commentary, the court should not have applied an

enhancement based on the “transfer or use” of a “means of identification” under

§ 2B1.1(b)(11)(C)(i). We therefore vacate and remand for resentencing without this

enhancement.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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