               Case: 13-11017       Date Filed: 04/03/2015      Page: 1 of 12


                                                                      [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-11017
                              ________________________

                        D.C. Docket No. 2:12-cr-14046-KMM-6



UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                            versus

JESSICA HARRIS,

                                                                      Defendant-Appellant.

                              ________________________

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

                                       (April 3, 2015)

Before TJOFLAT and JULIE CARNES, Circuit Judges, and DuBOSE, District
Judge. *

PER CURIAM:

       *
        Honorable Kristi K. DuBose, United States District Judge for the Southern District of
Alabama, sitting by designation.
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      Defendant Jessica Harris appeals her 24-month sentence, imposed after

pleading guilty to one count of conspiracy to commit mail fraud and two counts of

mail fraud, in violation of 18 U.S.C. §§ 1349 and 1341, respectively. On appeal,

Defendant argues that the district court erred by including the amount of fraudulent

checks cashed by co-conspirator Venus Holloman in the loss amount attributed to

Defendant. Second, Defendant argues that the district court erred by determining

that two of her prior state convictions were unrelated for the purpose of calculating

her criminal history category. We find no reversible error and affirm.

I.    Background

      According to the presentence investigation report (“PSR”), Defendant joined

a scheme to cash fraudulent refund checks purportedly issued as part of a program

to provide healthcare insurance for indigent children in Georgia. The leader of the

scheme was Erica Gilmore-Grier, who was an employee at Policy Studies, Inc., a

company that was responsible for administering Georgia PeachCare for Kids. The

latter was a children’s insurance program providing affordable healthcare for low-

income children in Georgia. Using her position at Policy Studies, Gilmore-Grier

authorized Policy Studies employees to issue refund checks, drawn either on

Policy Studies’ or Georgia PeachCare’s bank account, to several individuals who

were not enrolled in the designated program and who were therefore not authorized

to receive benefits. A Secret Service investigation revealed that, all total, Gilmore-


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Grier had caused the issuance of 77 fraudulent refund checks, totaling

$219,172.56, to fifteen individuals who had subsequently cashed the majority of

these checks.

        Venus Holloman, Defendant’s aunt, was also part of the scheme, and it was

she who approached Defendant and encouraged her to likewise participate by

cashing some of the fraudulently-issued checks for Gilmore-Grier. Defendant

subsequently began cashing checks for Gilmore-Grier over a five-month period of

time. Later on Defendant also recruited another aunt, Jamile Williams, to do the

same.

        In calculating loss under the United States Sentencing Guidelines, the PSR

held Defendant responsible for the checks she personally cashed (totaling

$12,900); the checks cashed by the aunt that Defendant recruited (Jamile Williams)

(totaling $16,700); and the checks cashed by Holloman after Defendant began

participating in the scheme (totaling $17,750). The PSR therefore attributed

$47,350 in total loss to Defendant.

        As to the final Guidelines’ calculations reflected in the PSR, the latter

calculated a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1). Defendant

received a six-level enhancement under § 2B1.1(b)(1)(D). The latter assesses a

six-level enhancement when the loss amount is greater than $30,000, but less than

$70,000, and Defendant’s loss was calculated as being $47,350. After receiving a


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two-level reduction under § 3E1.1(a) for acceptance of responsibility, Defendant’s

total offense level was 11.

      Albeit Defendant was only twenty-three years old when sentenced for the

present offense, she already had three prior convictions for fraud offenses. These

prior convictions resulted in the assessment of seven criminal history points, which

placed Defendant in criminal history category IV. Based on her criminal history

category of IV and total offense level of 11, Defendant’s resulting Guidelines’

range was 18 to 24 months’ imprisonment. The district court overruled

Defendant’s objections to the loss and criminal history calculation, and sentenced

her to 24 months’ imprisonment.

      She now appeals that sentence.

II.   Discussion

      A.     Loss Calculation

      Defendant challenges the inclusion in her loss calculation of $17,750

attributable to co-defendant Holloman’s activities that were made in furtherance of

the scheme to cash fraudulent checks and that occurred after the latter had solicited

Defendant to join the scheme. In a case involving jointly undertaken criminal

activity, the defendant is responsible for all reasonably foreseeable acts of others in

furtherance of this activity that occurred during the offense’s commission, in

preparation for the offense, or in the course of attempting to avoid detection.


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U.S.S.G. § 1B1.3(a)(1)(B). A jointly undertaken criminal activity is a criminal

plan or scheme undertaken by the defendant together with others, even if not

charged as a conspiracy. Id. § 1B1.3, comment. (n.2).

      To determine a defendant’s accountability for the acts of others in a criminal

scheme, the district court first must make individualized findings as to the scope of

the criminal activity undertaken by the defendant. United States v. Hunter, 323

F.3d 1314, 1319, 1322 (11th Cir. 2003) (vacating and remanding where district

court made findings regarding reasonable foreseeability without first determining

scope of criminal activity that the defendants jointly agreed to undertake); see also

U.S.S.G. § 1B1.3, comment. (n.2). The district court may consider any implicit

agreement fairly inferred from the conduct of the defendant and others in

determining the scope of the criminal activity that the defendant agreed jointly to

undertake. U.S.S.G. § 1B1.3, comment. (n.2). Once the district court has

determined the scope of the jointly undertaken criminal activity, a defendant may

be held accountable for losses resulting from the reasonably foreseeable acts of

other participants. Hunter, 323 F.3d at 1319.

      We review the district court’s findings of fact and loss calculations for clear

error. United States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004). Review

for clear error is deferential, and we will not disturb the district court’s finding

unless left with a definite and firm conviction that a mistake was made. United


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States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010). The district court’s

application of U.S.S.G. § 1B1.3, however, is reviewed de novo. McCrimmon, 362

F.3d at 728.

       Defendant initially acknowledged that she had joined with Holloman to

participate in the fraudulent check scheme. During her interview with the

probation officer after entering a plea of guilty, Defendant stated that her aunt,

Venus Holloman, was already active in the fraudulent check scheme when she

solicited Defendant’s participation. According to Defendant, she agreed to take

part in the scheme and checks were sent to her at her boyfriend’s residence. 1 But

after the PSR had been prepared, Defendant backed off the above admission. In

making Defendant’s loss calculation, the PSR had included checks that were

attributable to Holloman after Defendant had joined the scheme to which

Holloman had introduced her. Without the inclusion of this loss amount,

Defendant’s loss calculation would have been $29,600, which was just $400 shy of

the $30,000–$70,000 threshold necessary for a six-level increase. With this loss




       1
           In addition, Jamile Williams, another aunt of Defendant’s, indicated that Defendant had
later recruited her to participate in this same scheme. But having decided to quit the scheme
after having cashed several checks, Williams stated that Defendant cashed future checks sent to
Williams in the latter’s name. Although in her objections, Defendant denied having cashed
checks issued in Williams’ name, when she was jointly interviewed with Williams, she did not
dispute Williams’ allegation, but merely said she could not remember. This factual dispute was
of no moment, however, because Defendant did not contest the inclusion of losses attributable to
Williams.
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amount included, however, Defendant’s loss amount was calculated at $47,350,

qualifying her for the six-level increase.

      In objections filed by her attorney, the latter indicated that, even though

Defendant had originally told the probation officer that Defendant had agreed to

join in the scheme suggested by her aunt, in fact Defendant had initially rejected

her aunt’s offer. And, according to the pleadings, it was only later on that

Defendant contacted the organizer of the scheme, Gilmore-Grier, without

involving Holloman. Neither Defendant nor anyone else testified at the sentencing

hearing in support of the above contradiction of her initial admission, nor

explained how Defendant would have been able to make the contact. But her co-

defendant Holloman, who was likewise trying to avoid being held responsible for

loss attributable to Defendant, told the probation officer that Defendant initially

declined to participate, but later changed her mind, got Gilmore-Grier’s number

from Holloman’s telephone, and contacted the latter to convey her agreement to

participate in the scheme.

      To the extent that Defendant is arguing that the district court did not make

an individualized finding as to the scope of her jointly undertaken criminal activity,

her argument is unpersuasive. The court did not attribute loss amounts resulting

from the entire criminal activity to the Defendant, but, after hearing argument from

counsel, made an individualized determination as to her jointly undertaken


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criminal activity. Even if the district court could have perhaps articulated more

clearly its findings, we need not reverse because the record supports the district

court’s determination of Defendant’s loss amount. See United States v. Petrie, 302

F.3d 1280, 1290 (11th Cir. 2002) (“sentencing court’s failure to make

individualized findings regarding the scope of defendant’s activity is not grounds

for vacating a sentence if the record support[ed] the court’s determination with

respect to the offense conduct, including the imputation of others’ unlawful acts to

the defendant”). From the facts in the record, the district court could fairly infer an

implicit agreement between Holloman and Defendant, thereby making the checks

cashed by Holloman a part of the scope of Defendant’s jointly undertaken criminal

activity. See U.S.S.G. § 1B1.3, comment. (n.2). Accordingly, we find no

reversible error in the district court’s loss calculations for Defendant.

      B.     Criminal History

      Defendant received criminal history points for three separate convictions

relating to other fraudulent activity. She argues that two of those convictions

should have been considered related, which argument, if accepted, would have

reduced her number of criminal history points. The district court concluded that

the convictions were not related, and Defendant now appeals that decision.

      We address these offenses in chronological order by conviction date. On

September 15, 2010, Defendant was convicted in DeKalb County, Georgia of


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forgery and identity fraud, arising out of her effort to cash a stolen check at a bank

in January 2010. The court imposed a one-year term of imprisonment to be

followed by four years of probation. Defendant received two criminal history

points as a result of this conviction. DeKalb authorities also nolle prossed a

separate charge of financial transaction fraud based on Defendant’s alleged theft of

a purse containing over 20 credit cards.

      In March 2011, Defendant was convicted of unauthorized use of a credit

card and third degree grand theft in St. Lucie County, Florida, based on her credit

card fraud in a jewelry store in May 2009. She received a five-year probationary

term. Defendant received one criminal history point as a result of this conviction.

      In July 2012, Defendant was convicted of theft by taking in DeKalb County,

Georgia, based on her theft of an automobile from an automobile sales company on

May 21, 2009. She received a two-year sentence, with the sentence reduced to the

338 days she had already served. Defendant received two criminal history points

as a result of this conviction.

      Further, because the present offense (committed between February 2, 2011

and June 20, 2011) was committed during Defendant’s term of probation imposed

as a result of the Florida conviction, two additional points were added pursuant to




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U.S.S.G. § 4A1.1(d). 2 All total, Defendant had seven criminal history points,

which placed her in criminal history category IV.

       Defendant objected at sentencing that the conviction for forgery and identity

fraud and the conviction for theft by taking should have been considered to be

related and counted as only one conviction. Had this occurred, Defendant would

have received only three criminal history points for the two offenses, instead of the

four points she received by having them counted as separate convictions, and her

total points would have been just six. With only six criminal history points,

Defendant would have then been placed in category III, and thus subject to a lower

Guidelines’ range. In support of this argument, Defendant notes that an accusation

charging her with theft by taking was filed in June 2009 in DeKalb County and that

this charge could have been consolidated at the sentencing in September 2010 in

DeKalb for the unrelated forgery and identity fraud conviction. She further asserts

that, at the time of the 2010 DeKalb County proceeding, she believed that

sentencing to have represented a global settlement of all her pending charges.

       We review for clear error a district court’s determination that prior

convictions are not related under U.S.S.G. § 4A1.2. Hunter, 323 F.3d at 1322. As

to the first argument, it is not clear, as a factual matter, that DeKalb was in a
       2
          To put the timing of Defendant’s offenses in perspective, she began the commission of
the present offense in February 2011, less than five months after being sentenced in DeKalb
County, Georgia for forgery and identity fraud. She was given a probationary sentence in St.
Lucie, Florida in March 2011, one month into her commission of the present offense, with her
conduct continuing for three more months.
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position to resolve the theft by taking charge in 2010. A warrant for Defendant’s

arrest was not issued until February 2012 and not served on Defendant until May

2012. Nor is it certain whether or not Defendant would have been willing to plead

guilty to that charge at that time or what plea agreement the State would have

agreed to with the addition of that charge. Further, whether or not Defendant

believed or hoped that her 2010 sentencing represented a global resolution of her

pending charges, the only charge that was nolle prossed was a third unrelated

identify fraud and financial transaction charge. If the theft by taking charge

sentenced in 2012 was to have been resolved by a global agreement, that objection

should have been made at the time Defendant was sentenced on that charge in

2012.

        Regardless of all the above, though, Defendant’s argument that the two

convictions were related for Guidelines’ purposes finds no support in the

Guidelines. Section 4A1.2(a)(2) of the Sentencing Guidelines provides:

        If the defendant has multiple prior sentences, determine whether those
        sentences are counted separately or as a single sentence. Prior
        sentences always are counted separately if the sentences were
        imposed for offenses that were separated by an intervening arrest (i.e.,
        the defendant is arrested for the first offense prior to committing the
        second offense). If there is no intervening arrest, prior sentences are
        counted separately unless (A) the sentences resulted from offenses
        contained in the same charging instrument; or (B) the sentences were
        imposed on the same day. Count any prior sentence covered by (A) or
        (B) as a single sentence.

U.S.S.G. § 4A1.2(a)(2).
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      There having been no intervening arrest between the commission of the two

offenses at issue, then the prior sentences for each should have been counted

separately, as the district court did, unless either the sentences resulted from

offenses contained in the same charging instrument or the sentences were imposed

on the same day. Yet, neither of these preconditions for counting the two

separately exists. The sentences did not emanate from the same charging

instrument nor were they imposed on the same day. That is the end of the debate

for purposes of applying § 4A1.2(a)(2).

      As to Defendant’s argument that sentences on the two offenses should have

been imposed on the same day, she cites no authority for this proposition and no

authority to suggest that, even if true, this fact would warrant ignoring the plain

language of § 4A1.2, which requires that the two sentences at issue be counted

separately. Therefore, the district court did not clearly err in refusing to treat the

two sentences as related.

      For the above reasons, Defendant’s sentence is AFFIRMED.




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