           Case: 16-11072   Date Filed: 03/28/2017   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11072
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:14-cr-00130-TWT-JFK-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

KAMALI RIVES,
a.k.a. Kut,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (March 28, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Defendant Kamali Rives appeals his 234-month sentence, imposed after

pleading guilty to multiple charges of bank fraud, access device fraud, and

aggravated identity theft. On appeal, he argues that the district court clearly erred

in calculating the loss amount for purposes of determining his advisory guideline

range. After careful review, we affirm.

I.     BACKGROUND

       Defendant’s convictions stem from a bank fraud conspiracy, in which

Defendant and his co-conspirators stole checks from a Bank of America lockbox

facility, deposited those checks into fraudulent bank accounts, and then withdrew

money from those accounts. Defendant also used the information gleaned from

those checks to access the bank accounts held by the account holders, alter the

contact information, and withdraw money from the accounts for his own personal

use.

       According to the Presentence Investigation Report (“PSR”), Jimia Fannon

worked in a lockbox unit processing checks from envelopes that were mailed to

Bank of America’s P.O. Box. Fannin stole checks from the lockbox facility and

gave them to Defendant and another individual named Rashon Bohannon.

Defendant and Bohannon directed Ashley Posey and others to open fraudulent

checking accounts in names similar or identical to the “payee” identified on the

stolen checks. Defendant and his co-conspirators deposited the stolen checks into


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these accounts and withdrew money for their own personal use. Utilizing the

information from the stolen checks, Defendant and Bohannon accessed the bank

accounts, changed the customer account contact information, and then withdrew

money from those accounts.

      In September 2010, officers with the Hapeville Police Department contacted

the United States Postal Inspector regarding an investigation pertaining to

Defendant and Bohannon. Hapeville officers had responded to the scene of an

alleged armed robbery at a hotel room rented by Defendant and Bohannon. When

officers were not able to make contact, they conducted a “welfare” check and

observed multiple credit cards and debit cards on the bed. After obtaining a search

warrant for an additional room rented by Defendant and Bohannon, officers found

multiple cards in various names, stolen checks, and other documents containing

personal identifying information. The checks included 13 business checks

(totaling $904,561) and 23 personal checks (totaling $11,086).

      Approximately three years later, Darryle Pulliam informed law enforcement

that Defendant beat him after he refused to participate in a credit card fraud

scheme. Officers later conducted a knock-and-talk at the location provided by

Pulliam, which uncovered a counterfeit credit card operation. Defendant admitted

to officers that he manufactured counterfeit credit cards.




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      A federal grand jury subsequently issued an indictment charging Defendant

with the following: (1) conspiracy to commit bank fraud, 18 U.S.C. § 1349

(“Count 1”); (2) bank fraud, 18 U.S.C. §§ 1344 & 2 (“Counts 2 through 11”);

(3) access device fraud, 18 U.S.C. §§ 1029(a)(2), (a)(3), (a)(4) & 2 (“Counts 12

through 17 and Count 23”); and (4) aggravated identity theft, 18 U.S.C.

§§ 1028A(a)(1) & 2 (“Counts 18 through 22”). Following the denial of his motion

to suppress, Defendant pled guilty to all charges.

      In anticipation of sentencing, the probation officer prepared the Presentence

Investigation Report. The PSR assigned Defendant a base offense level of 7,

pursuant to U.S.S.G. § 2B1.1. Defendant received a 16-level enhancement under

§ 2B1.1(b)(1)(I) because the offense involved an intended loss of $2,024,865.29.

The intended loss amount included the following: (1) $877,153.28 in deposited

checks stolen by Fannin; (2) $904,561.14 in recovered corporate checks;

(3) $11,086.27 in recovered personal checks; and (4) $232,064.60 of checks

reported stolen from the Bank of America lockbox by identity theft victims.

      Defendant also received various other enhancements not relevant to this

appeal, which resulted in a total offense level of 33. Based on a total offense level

of 33 and a criminal history category of V, Defendant’s guideline range was 210 to

262 months’ imprisonment. The PSR noted that Defendant was also subject to a

24-month mandatory minimum sentence to run consecutive to any imprisonment


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sentence imposed. Of relevance to this appeal, Defendant objected to the PSR’s

attribution of the full loss amount to him.

       At sentencing, in order to address Defendant’s objection to the loss

calculation, the Government presented testimony from United States Postal

Inspector Nathaniel Sims. Inspector Sims testified that he prepared four

spreadsheets summarizing the loss amounts pertaining to Defendant’s bank fraud

scheme. 1 Sims connected Defendant to the deposited checks totaling $877,153.28

based on (1) text messages between Fannin, Defendant, and Bohannon,

(2) Fannin’s own statements that she stole the checks for Defendant and Bohannon,

and (3) surveillance footage showing Defendant depositing two of the checks.

When Inspector Sims interviewed James Ray, who deposited one of the stolen

corporate checks, Ray told him that he received the check from an individual

named “Kut.” Sims later determined that the phone number Ray provided for

“Kut” belonged to Defendant.

       Next, Sims explained that Defendant was accountable for the corporate and

personal checks—totaling $904,561.14 and $11,086.27, respectively—found

during the 2010 search of Defendant’s hotel rooms. Sims explained that the final


1
  Though they provided more detailed information, the four spreadsheets presented at the
sentencing hearing listed the same checks and identity theft victims as those listed in the PSR.
The spreadsheets also separated the loss amounts into the same four categories depicted in the
PSR: (1) deposited checks; (2) recovered corporate checks; (3) recovered personal checks; and
(4) identity theft victims who reported stolen lockbox checks.


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amount for which Defendant was accountable totaled $232,064.60 and pertained to

the various instances of identity theft—including fraudulently obtained loans and

fraudulently accessed bank accounts—that occurred as a result of the victims’

information having been obtained from the checks processed at the lockbox

facility.

       Following Sims’s testimony, the Government argued that it had shown by a

preponderance of the evidence that a reasonable estimate of the intended loss was

between $1,500,000 and $3,500,000, and that Defendant should be held

accountable for the full amount of loss. Defendant responded that he was

responsible only for the checks that he personally withdrew funds from and those

of which he induced others to steal. The district court disagreed with Defendant’s

interpretation of relevant conduct, stating that Defendant and the other participants

were involved in “one big check fraud scheme,” so each participant’s actions could

be attributed as relevant conduct to the other participants. Concluding that a

reasonable estimate of the intended loss far exceeded $1,500,000, the district court

determined that the 16-level loss enhancement was applicable.

       Because the district court sustained an objection not relevant to this appeal,

it recalculated an amended guideline range of 168 to 210 months’ imprisonment,

followed by a consecutive sentence of 24 months’ imprisonment. Ultimately, the

district court sentenced Defendant to a total of 234 months’ imprisonment,


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consisting of 210 months as to Counts 1 through 11, 180 months as to Count 23,

120 months as to Counts 12 through 17, all to run concurrently to each other, and

24 months as to Counts 18 through 23, to run concurrently to each other but

consecutive to Defendant’s other sentences. This appeal followed.

II.    DISCUSSION

       Defendant argues that the district court clearly erred in calculating the

intended loss amount attributable to him. 2 We review the district court’s

calculation of the loss amount for clear error. United States v. Barrington, 648

F.3d 1178, 1197 (11th Cir. 2011). Although the district court is only required to

make a reasonable estimate of the loss, the loss calculation must be supported by

reliable and specific evidence. Id.; see also U.S.S.G. § 2B1.1, comment. (n.3(C))

(“The court need only make a reasonable estimate of the loss.”). In calculating the

amount of loss attributable to a defendant, the district court may rely on “trial

evidence, undisputed statements in the presentence report, or evidence presented at

the sentencing hearing.” United States v. Pierre, 825 F.3d 1183, 1197 (11th Cir.

2016).

       Section 2B1.1(b)(1)(I) of the Sentencing Guidelines provides for a 16-level

enhancement in the base offense level if the loss exceeds $1,500,000 but is less

2
  We note that Defendant does not appear to challenge the actual calculation of the total
intended loss amount. He instead takes issue with the district court’s determination that he was
accountable for the full amount of the loss.


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than $3,000,000. See U.S.S.G. § 2B1.1(b)(1)(I), (J). The commentary states that

the loss determination is measured by the greater of the actual loss or intended loss.

Id. § 2B1.1, comment. (n.3(A)). Intended loss is defined as “the pecuniary harm

that the defendant purposefully sought to inflict,” or the “intended pecuniary harm

that would have been impossible or unlikely to occur.” Id. § 2B1.1, comment.

(n.3(A)(ii)). “A reasonably foreseeable pecuniary harm is one that the defendant

‘knew or, under the circumstances, reasonably should have known, was a potential

result of the offense.’” United States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir.

2014) (quoting U.S.S.G. § 2B1.1, comment. (n.3(A)(iv))).

       Here, the district court did not clearly err by determining that Defendant was

accountable for the full amount of intended loss totaling $2,024,865.29. As to the

conclusion that the full amount of the deposited checks could be attributed to

Defendant, Defendant asserts that he should only be responsible for the checks that

he personally deposited or induced to be stolen.3 We disagree. The Guidelines

provide that in the case of a joint criminal activity, a defendant is accountable for

the conduct of others, if that conduct was (1) “within the scope of the jointly

undertaken criminal activity,” (2) “in furtherance of that criminal activity,” and




3
  Defendant specifically identifies certain checks that were not deposited by him; these contested
checks totaled $482,745.15.


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(3) “reasonably foreseeable in connection with that criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B).

      Defendant pled guilty to conspiring with Bohannon and others to deposit

stolen checks into fraudulent bank accounts and withdraw funds from those

accounts for personal use. The Government presented reliable and specific

evidence showing that each stolen check was within the scope of jointly taken

criminal activity, each check was stolen and deposited in furtherance of the

scheme, and this conduct was “reasonably foreseeable” to Defendant, as Defendant

participated in organizing the scheme. Indeed, the undisputed PSR facts

established that each deposited check was processed through the Bank of America

lockbox facility, Fannin stole the checks, and Fannin gave the stolen checks to

Defendant and Bohannon. See Pierre, 825 F.3d at 1197.

      The evidence also suggests that Defendant was not a low-level conspirator

with little knowledge regarding the larger conspiracy. Defendant and Bohannon

organized meetings in their home to inform co-conspirators that they had several

checks that needed to be deposited. Moreover, James Ray—who deposited one of

the stolen corporate checks—told Postal Inspector Sims that Defendant approached

him regarding the bank fraud scheme. Although Defendant correctly points out

that Ray did not provide an accurate physical description of Defendant, Ray did

give other accurate information indicating that he had contact with Defendant,


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including Defendant’s telephone number, the make of his car, and the area where

he lived. Because the actions of Defendant’s co-conspirators were within the

scope of the jointly undertaken criminal activity, these acts can be attributed to

Defendant, regardless of whether he personally deposited or induced a particular

check to be stolen. See U.S.S.G. § 1B1.3(a)(1)(B).

      Defendant’s argument that he should not be held accountable for the stolen

corporate and personal checks, which were found during the search of his hotel

rooms in 2010, is without merit. It is of no consequence that he and Bohannon

rented the rooms together, or that officers had received an anonymous tip that

Bohannon was engaging in fraudulent activity at that hotel. The fact is that these

checks were found in hotel rooms that Defendant admitted he rented, along with

other documents pertaining to fraud, including multiple credit cards in other

people’s names, stolen checks, files with personal identifying information, and

bank account information. Accordingly, the district court did not commit clear

error by attributing the loss amounts associated with these checks to Defendant.

      Nevertheless, even if we determined that the district court clearly erred by

attributing the contested loss amounts to Defendant, any error would be harmless.

See United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 2009) (“A Sentencing

Guidelines miscalculation is harmless if the district court would have imposed the

same sentence without the error.”). At sentencing, the district court stated that if it


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had miscalculated the guideline range “under the aggravating facts and

circumstances of this case[,] a total sentence of 234 months is the least sentence

that [it] would impose under any set of facts or any different guideline

calculations.” Because the district court indicated that it would have imposed the

same sentence, even if it erred in calculating the guideline range, any error in

attributing the entire loss amount to Defendant is harmless. See id. at 1248

(“Where a district judge clearly states that he would impose the same sentence,

even if he erred in calculating the guidelines, then any error in the calculation is

harmless.”).

       For the foregoing reasons, Defendant’s sentence is AFFIRMED. 4




4
  We also reject Defendant’s argument raised for the first time on appeal that the district court
failed to apply the 2015 changes to the Sentencing Guidelines’ definition of “intended loss.” The
record simply does not support this assertion, as the PSR indicated that it applied the 2015
Guidelines and the district court explicitly stated that its guidelines calculations were based on
the 2015 edition of the Sentencing Guidelines.


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