           Case: 15-13787   Date Filed: 08/24/2016   Page: 1 of 12


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13787
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-00218-CG-B-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CHERYL A. DOTSON,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 24, 2016)

Before TJOFLAT, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Cheryl A. Dotson appeals her convictions for conspiracy to commit loan

application fraud, in violation of 18 U.S.C. § 371, and loan application fraud, in

violation of 18 U.S.C. § 1014, as well as her 41-month sentence. Dotson argues

that the district court erred by admitting evidence of her prior bad acts in violation

of Federal Rule of Evidence 404(b). She also argues that the district court erred by

imposing a manager/supervisor sentence enhancement, pursuant to U.S.S.G

§ 3B1.1(b). Finally, she argues that the district court erred in calculating the loss

amount attributable to her and, therefore, the sentence enhancement corresponding

to that loss. For the reasons set forth below, we affirm.


                                           I.


      We review a district court’s evidentiary rulings for a clear abuse of

discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). A district

court’s evidentiary ruling warrants reversal only if there is a reasonable likelihood

that the resulting error affected the defendant’s substantial rights. United States v.

Hands, 184 F.3d 1322, 1329 (11th Cir. 1999). If the error “had no substantial

influence on the outcome and sufficient evidence uninfected by error supports the

verdict,” reversal is not necessary. Id.

      Federal Rule of Evidence 404(b) provides that evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to


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show action in conformity with that character, but may be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. See United States v.

Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). Rule 404(b) is characterized as a

rule of inclusion, and thus, 404(b) evidence should not lightly be excluded when it

is central to the prosecution’s case. United States v. Jernigan, 341 F.3d 1273, 1280

(11th Cir. 2003). Evidence is admissible under Rule 404(b) if it meets three

criteria:

       (1) it is relevant to an issue other than the defendant’s character;
       (2) the prior act is proved sufficiently to permit a jury determination
       the defendant committed the act; and (3) the evidence’s probative
       value cannot be substantially outweighed by its undue prejudice, and
       it must satisfy Federal Rule of Evidence 403.

Eckhardt, 466 F.3d at 946. We consider the evidence in the light most favorable to

its admission, maximizing its probative value and minimizing its undue prejudicial

impact. Jernigan, 341 F.3d at 1284. Even where the prejudicial effect is close, the

abuse of discretion standard is deferential. Id. at 1285.

       Under Federal Rule of Evidence 403, the court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of, among

other things, unfair prejudice, confusing the issues, or misleading the jury. Rule

403 is an extraordinary remedy to be used sparingly, because it permits the trial

court to exclude otherwise relevant evidence. United States v. Meester, 762 F.2d


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867, 875 (11th Cir. 1985). “[T]he probative value of the extrinsic offense

correlates positively with its likeness to the offense charged.” United States v.

Cardenas, 895 F.2d 1338, 1344 (11th Cir. 1990).

      In this case, the Government offered evidence that Dotson had, prior to the

loan scheme alleged in this case, written a series of bad checks. Further, the

Government demonstrated that she had entered into a restitution agreement with

the district attorney’s office regarding the bad checks. The agreement specified

that the district attorney would not pursue criminal charges against her so long as

she acknowledged that she wrote the bad checks and agreed to repay them.

      The potentially prejudicial effect of this evidence should be obvious. There

was a substantial risk that the jury might decide that, because Dotson had

committed fraud in the past by knowingly writing bad checks, it was more likely

that she committed the loan fraud alleged in this case. That is precisely the sort of

inference prohibited by Rule 404(b)(1). However, evidence of past bad acts is only

inadmissible if offered to prove action in conformity with a character trait

illustrated by those acts, and the Government claims that it offered the evidence of

Dotson’s bad checks for other, permissible purposes.

      The Government cites two permissible purposes for the evidence of the bad

check scheme. First, the Government points out that the restitution agreement

requires that Dotson acknowledge she wrote the bad checks. Therefore, the


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Government argues, the bad checks provide examples of Dotson’s signature.

Because Dotson contested at trial that she actually signed any of the fraudulent

loan documents, Government witnesses and the jury could determine, by

comparing her signature on the bad checks to her signatures on the loan

documents, that she did, in fact, sign the loan documents. Second, the Government

argues that the evidence of the bad checks is necessary to complete the story of the

crime, because Dotson used proceeds from the loan scheme to repay two of her bad

checks.

       We find these arguments weak, 1 and we decline to rely on them because the

evidence was properly admissible to show motive. We hold that the district court

did not abuse its discretion because evidence of the bad check scheme and

restitution agreement was admissible to show Dotson’s motive to commit loan

fraud. Motive is one of the purposes explicitly allowed under Rule 404(b)(2). The

Government was permitted to put on evidence demonstrating that Dotson needed

money from the loan scheme to make payments required by the restitution

1
  First, it seems to us that there must have been a significantly less prejudicial means of
providing an example of Dotson’s signature than a document acknowledging she committed a
crime, evidence of which would otherwise be inadmissible. In fact, the Government actually
presented at trial a credit union membership agreement with Dotson’s signature on it, and a
witness confirmed that photo identification was required to submit the application. Additionally,
if the bad checks and restitution agreement were admitted solely as exemplars of Dotson’s
signature, they should have been redacted to prevent the jury from considering the evidence of
her prior bad acts. Second, the “story of the crime” is complete in this case once the false
statements on the loan application are made, and the money used to pay off the bad checks
represented only a portion of the loan scheme proceeds. We question whether it was truly
necessary to present such prejudicial evidence merely to “complete the story of the crime.”
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agreement. Applying our three part test, then, we conclude that the evidence was

relevant to Dotson’s motive, an issue other than her character. The Government

provided adequate proof of Dotson’s involvement in the scheme by providing the

documents and a witness who could testify to the process used to create them.

Finally, though the evidence was prejudicial, we cannot say that any undue

prejudice substantially outweighed its probative value. Therefore, we hold that the

district court did not abuse its discretion in admitting the evidence.


                                          II.


      We will affirm a sentence based on harmless error in calculating the

guideline range if we know that the district court would have imposed the same

sentence regardless of its ruling on a guidelines issue, and the sentence is

reasonable even if that issue was decided in the defendant’s favor. United States v.

Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). The defendant has the burden of

establishing the unreasonableness of the sentence had the court decided the

guidelines issue in the defendant’s favor. See id. at 1350. We review the

substantive reasonableness of a sentence under a deferential abuse-of-discretion

standard. United States v. Irey, 612 F.3d 1160, 1186 (11th Cir. 2010) (en banc).

      We examine the sentence’s substantive reasonableness under the totality of

the circumstances. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).


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A district court abuses its discretion and imposes a substantively unreasonable

sentence when it fails to afford consideration to relevant factors that were due

significant weight, gives significant weight to an improper or irrelevant factor, or

commits a clear error of judgment in considering the proper factors. Irey, 612 F.3d

at 1190. If a district court imposes a sentence outside of the guidelines, we must

consider the extent of the deviation and “ensure that the justification is sufficiently

compelling to support the degree of the variance.” Gall v. United States, 552 U.S.

38, 50, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We will remand only when

“left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the § 3553(a) factors by arriving at a sentence that

lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotations omitted).

      The district court is required to impose a sentence “sufficient, but not greater

than necessary, to comply with the purposes” listed in § 3553(a)(2), including the

need to reflect the seriousness of the offense, promote respect for the law, provide

just punishment for the offense, deter criminal conduct, and protect the public from

the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In imposing a

particular sentence, the court must also consider the nature and circumstances of

the offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, the pertinent policy statements of the


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Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      The district court stated at the sentencing hearing that it had calculated an

initial offense level of seven, corresponding to a sentence of 0-6 months. Over

Dotson’s objections, the court imposed a three-level enhancement for her

involvement as a manger or supervisor of an extensive criminal enterprise, and a

twelve-level enhancement because the loss exceeded $200,000. The district court

calculated a total offense level of 22. Dotson argues that the district court erred by

imposing the enhancements because the Government failed to prove that the

criminal enterprise was extensive and because only a portion of the loss was

attributable to her. Dotson argues that the district court should not have imposed

the manager/supervisor enhancement at all, and that it should have imposed only a

six-level enhancement for the portion of the loss attributable to Dotson. If Dotson

is correct, the adjusted offense level should have been 13, corresponding to a

guidelines range of 12-18 months.

      The Government does not respond to these claims at all. Instead, the

Government argues only that the district court, pursuant to our decision in Keene,

stated that it would have imposed the same sentence even if it had miscalculated

the guidelines or resolved the objections to the enhancements in the defendant’s

favor. We question the Government’s extensive reliance on Keene without


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providing any justification for the sentence’s reasonability absent the

enhancements,2 but we conclude that Dotson’s challenges to the sentence are

ultimately unsuccessful.

       Dotson first argues that the district court’s calculation of the loss was in

error. Dotson does not contest the Government’s evidence that the loss resulting

from the scheme exceeded $200,000. Instead, she argues that she only received a

portion of that money and that not all of the fraudulent loan applications listed the

address, employer, class schedule, or email address associated with Dotson.

Dotson cites no law whatsoever indicating that either fact might mitigate the loss

attributable to her. Indeed, we have explicitly held that the entire loss resulting

from a conspiracy may be deemed attributable to any individual conspirator: “once

a sentencing court determines that certain acts or omissions are ‘part of the same

course of conduct’ as the offense of conviction, it may hold the appellant

responsible for all losses resulting from acts by participants for whose conduct the

court deems him accountable.” United States v. LaFraugh, 893 F.2d 314, 317

(11th Cir. 1990). That is consistent with sentencing guidelines, which specify that

adjustments to the offense level should be based on:



2
  If the district court really had accepted Dotson’s objections and imposed only a six-level
enhancement for the scope of the loss, the 41-month sentence imposed would have been more
than twice the maximum guideline range, and thus may have been of questionable substantive
reasonableness.
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      in the case of a jointly undertaken criminal activity (a criminal plan,
      scheme, endeavor, or enterprise undertaken by the defendant in
      concert with others, whether or not charged as a conspiracy), all acts
      and omissions of others that were (i) within the scope of the jointly
      undertaken criminal activity, (ii) in furtherance of that criminal
      activity, and (iii) reasonably foreseeable in connection with that
      criminal activity; that occurred during the commission of the offense
      of conviction, in preparation for that offense, or in the course of
      attempting to avoid detection or responsibility for that offense.

U.S.S.G. § 1B1.3(a)(1)(B). It is also consistent with the sentencing guidelines

regarding the scope of the loss, which refer only to “the loss,” not the portion of

the loss that ultimately ended up in an individual defendant’s bank account.

U.S.S.G. § 2B1.1. As a result, the district court correctly attributed to Dotson the

entire loss caused by the scheme. The district court did not err by imposing a

twelve-level enhancement for the scope of the loss.

      We turn now to the second enhancement: manager/supervisor responsibility.

This enhancement calls for the addition of three offense levels “[i]f the defendant

was a manager or supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise extensive.” U.S.S.G.

§ 3B1.1(b). Dotson contests that she was a manager or supervisor of the scheme,

and she also argues that the Government failed to prove that the scheme involved

five or more participants or was otherwise extensive. We note briefly that Dotson

has a good argument on the extensiveness issue. Neither the district court nor the

presentence investigation made any finding that the scheme was “otherwise


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extensive.” The presentence investigation indicated that exactly five people were

involved in the scheme, and the district court made no additional findings of fact

on the issue at the sentencing hearing. However, the fifth person allegedly

involved in the scheme, Douglas Dotson, was not listed in the indictment, was not

a defendant in the case, and was barely mentioned at trial. There was little

evidence presented at trial that Douglas Dotson was involved in the criminal

activity.

       Dotson raises this issue for the first time on appeal. Her objection to the role

enhancement was limited to the claim that Dotson was not a manager or supervisor

at all. “We review sentencing arguments raised for the first time on appeal for

plain error.” United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009).

“[T]he decision to correct the forfeited error is within the sound discretion of the

court of appeals, and we should only exercise that discretion if the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id.

(quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d

508 (1993)) (internal quotation marks and brackets omitted).

       Even if Dotson is correct that she was not a manager or supervisor at all, the

district court’s Keene statement is sufficient to justify the sentence imposed. If the

initial offense level was seven, and if the district court correctly added 12 offense

levels for the size of the loss, the result is an adjusted offense level of 19. That


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offense level corresponds to a sentence of 30-37 months. Although Dotson’s 41-

month sentence was somewhat above this range, we conclude that the sentence was

reasonable given the evidence presented at trial demonstrating that she was

involved in the management of the conspiracy’s assets. See United States v.

Glover, 179 F.3d 1300, 1302-03 (11th Cir. 1999). Because the district court noted

it would have imposed the same sentence even if it had sustained Dotson’s

objection to the manager/supervisor enhancement, and because such a sentence

would have been substantively reasonable, we uphold the district court’s 41-month

sentence.


                                         III.


       In summary, we hold that the district court did not abuse its discretion by

admitting evidence that Dotson wrote a series of bad checks and entered into a

restitution agreement to repay them. That evidence was admissible to demonstrate

Dotson’s motive. We also hold that the district court correctly imposed a twelve-

level enhancement for the scope of the loss caused by the conspiracy of which

Dotson was a member, and that the sentence imposed was substantively reasonable

even absent the additional enhancement for her supervisory role. The judgment of

the district court is


       AFFIRMED.

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