                                                          [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 JUNE 23, 2006
                                 No. 05-16036                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                      D. C. Docket No. 05-00015-CR-4-SPM

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

LYNN YUE,

                                                              Defendant-Appellant.


                           ________________________

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

                                  (June 23, 2006)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Lynn Yue appeals her sentence for mail fraud, in violation of 18 U.S.C.

§ 1341, and bank fraud, in violation of 18 U.S.C. § 1344. Yue asserts the district
court erred in: (1) assessing a two-level increase in her offense level for employing

sophisticated means, pursuant to U.S.S.G. § 2B1.1(b)(9)(C); (2) assessing a two-

level increase in her offense level for obstruction of justice, pursuant to U.S.S.G.

§ 3C1.1; and (3) denying her a two-level reduction for acceptance of responsibility,

pursuant to U.S.S.G. § 3E1.1(a). The district court did not err, and we affirm.

                                  I. DISCUSSION

      Following the Supreme Court’s decision in United States v. Booker, 125 S.

Ct. 738, 765 (2005), we review sentences for reasonableness. Nevertheless, the

district court must calculate the Sentencing Guidelines correctly. United States v.

Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). Post-Booker, we review the

district court’s application of the Guidelines under the same standards as we did

pre-Booker, namely, that the district court’s interpretation of the Guidelines is

reviewed de novo and factual findings are reviewed for clear error. Id. at 1177-78.

It is necessary to determine, utilizing pre-Booker precedent, whether the district

court correctly interpreted and applied the Guidelines to determine the appropriate

advisory Guideline range. See id. at 1178. Here, Yue makes no argument as to the

reasonableness of her sentence, and only argues whether the Guidelines range was

calculated correctly. Thus, we will only address this aspect of sentencing.

A. Sophisticated Means



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      Two levels are added to a defendant’s base offense level if the offense

involved “sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C). “Sophisticated

means” is defined as:

      especially complex or especially intricate offense conduct pertaining
      to the execution or concealment of an offense. For example, in a
      telemarketing scheme, locating the main office of the scheme in one
      jurisdiction but locating soliciting operations in another jurisdiction
      ordinarily indicates sophisticated means. Conduct such as hiding
      assets or transactions, or both, through the use of fictitious entities,
      corporate shells, or offshore financial accounts also ordinarily
      indicates sophisticated means.

U.S.S.G. § 2B1.1, comment. (n.8(B)).

      Although we have not fully delineated what qualifies as “sophisticated

means,” we have held “sophisticated means involves more than minimal

planning.” United States v. Humber, 255 F.3d 1308, 1314 (11th Cir. 2001)

(holding “sophisticated means” and the now-defunct “more than minimal

planning” enhancements could be applied cumulatively).

      Based on the repetition and complexity of Yue’s scheme, the district court

did not err in applying the enhancement. While working as an office manager for

Dr. Karen Chason, Yue used Dr. Chason’s financial and personal information to

(1) open new credit accounts in Dr. Chason’s name, (2) access and use Dr.

Chason’s existing credit accounts, and (3) access money held in Dr. Chason’s bank

account. Additionally, Yue would impersonate Dr. Chason to pick up merchandise

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and to receive plastic surgery paid for by Dr. Chason, as well as use Dr. Chason’s

identity to order prescription pain killers for her drug counselor. Yue also went to

great lengths to conceal her activity, including blaming other people and opening

Dr. Chason’s mail. This conduct, in the aggregate, is a sophisticated scheme both

to commit fraud and avoid detection. See U.S.S.G. § 2B1.1, comment. (n.8(B)).

Therefore, we affirm the district court as to this issue.

B. Obstruction of Justice

      If (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice during the course of
      the investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the
      defendant’s offense of conviction and any relevant conduct; or (ii) a
      closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. The conduct resulting in obstruction varies “widely in nature,

degree of planning, and seriousness.” U.S.S.G. § 3C1.1, comment. (n.3).

Examples of conduct where § 3C1.1 applies include when the defendant commits

perjury, provides “materially false information to a judge or magistrate,” or

provides “materially false information to a probation officer in respect to a

presentence or other investigation for the court.” U.S.S.G. § 3C1.1, comment. (n.4

(b), (f), and (h)). An example of conduct where § 3C1.1 does not apply, but may

warrant a greater sentence within the otherwise applicable Guideline range, is

when the defendant provides “incomplete or misleading information, not

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amounting to a material falsehood, in respect to a presentence investigation.”

U.S.S.G. § 3C1.1, comment. (n.5(c)).

      “To justify an enhancement under Section 3C1.1, the defendant must act

willfully, which has been interpreted to mean the defendant must consciously act

with the purpose of obstructing justice.” United States v. Revel, 971 F.2d 656, 661

(11th Cir. 1992) (quotations and citation omitted). A material statement is one

“that, if believed, would tend to influence or affect the issue under determination.”

U.S.S.G. § 3C1.1, comment. (n.6). The threshold for materiality is low. United

States v. Dedeker, 961 F.2d 164, 167 (11th Cir. 1992).

      Perjury, for purposes of obstruction of justice, is defined as giving “false

testimony concerning a material matter with the willful intent to provide false

testimony, rather than as a result of confusion, mistake, or faulty memory.” See

United States v. Dunnigan, 113 S. Ct. 1111, 1116 (1993), abrogated on other

grounds, United States v. Wells, 117 S. Ct. 921 (1997). “This provision is not

intended to punish a defendant for the exercise of a constitutional right” such as the

right to refuse to admit guilt, and “the court should be cognizant that inaccurate

testimony or statements sometimes may result from confusion, mistake, or faulty

memory, and, thus, not all inaccurate testimony or statements necessarily reflect a

willful attempt to obstruct justice.” U.S.S.G. § 3C1.1, comment. (n.2).



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         The district court did not err in enhancing Yue’s sentence based on

obstruction of justice when Yue gave false information about her educational

background. First, despite Yue’s arguments that the misrepresentations were not

willful, there is no indication it was based on confusion, mistake, or faulty

memory. See Dunnigan, 113 S. Ct. at 1116; U.S.S.G. § 3C1.1, comment. (n.2).

Second, the misrepresentation was material. The record supports that the

magistrate relied, at least in part, on Yue’s representations concerning her

education when he determined Yue’s pretrial detention. Yue further lied about her

education to the district court under oath during the plea colloquy. Further, this

misrepresentation went beyond merely “incomplete or misleading information, not

amounting to a material falsehood, in respect to a presentence investigation.” See

U.S.S.G. § 3C1.1, comment. (n.5(c)). Thus, we affirm the district court as to this

issue.

C. Acceptance of Responsibility

         “The district court is in a unique position to evaluate whether a defendant

has accepted responsibility for [her] acts, and this determination is entitled to great

deference on review. Unless a court’s determination is without foundation, it

should not be overturned on appeal.” United States v. Pritchett, 908 F.2d 816, 824

(11th Cir. 1990). “A district court’s determination that a defendant is not entitled



                                            6
to acceptance of responsibility will not be set aside unless the facts in the record

clearly establish that a defendant has accepted personal responsibility.” United

States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).

      Section 3E1.1 of the Sentencing Guidelines provides “[i]f the defendant

clearly demonstrates acceptance of responsibility for [her] offense, decrease the

offense level by 2 levels.” “The defendant bears the burden of clearly

demonstrating acceptance of responsibility and must present more than just a guilty

plea.” Sawyer, 180 F.3d at 1323. Adjustment is not warranted where the

defendant falsely denied relevant conduct. U.S.S.G. § 3E1.1, comment. (n.1(a)).

Moreover, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or

Impeding the Administration of Justice) ordinarily indicates that the defendant has

not accepted responsibility for [her] criminal conduct. There may, however, be

extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may

apply.” U.S.S.G. § 3E1.1, comment. (n.4). A defendant is not entitled to a

reduction for acceptance of responsibility if she acknowledges responsibility for

the offense but continued criminal conduct. United States v. Villarino, 930 F.2d

1527, 1530 (11th Cir. 1991). Further, an admission of involvement in the crime

alone does not necessarily amount to an affirmative acceptance of responsibility.

See United States v. Shores, 966 F.2d 1383, 1388 (11th Cir. 1992).



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      Contrary to Yue’s assertions, the district court expressly denied the

reduction for acceptance of responsibility because she continued her deceptive

behavior of lying about her educational background. Yue was required to do more

than just plead guilty, and the district court found she actively lied to the court

while the case was ongoing. See Villarino, 930 F.2d at 1530. In addition, since

Yue received an enhancement pursuant to § 3C1.1, she is generally not entitled to a

reduction for acceptance of responsibility. U.S.S.G. § 3E1.1, comment. (n.4).

Thus, since the facts in the record do not clearly establish Yue was entitled to

acceptance of responsibility and the district court’s decision is entitled to great

deference, we hold the district court did not clearly err.

                                  II. CONCLUSION

      The district court did not err in imposing the sophisticated means and

obstruction of justice enhancements, or in denying an acceptance of responsibility

reduction. Since all of Yue’s Guideline issues fail, and Yue raises no argument

that her sentence was unreasonable, we affirm Yue’s sentence.

      AFFIRMED.




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