              Case: 13-14665    Date Filed: 07/09/2014   Page: 1 of 7


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14665
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:13-cr-20365-CMA-1

UNITED STATES OF AMERICA,


                                             Plaintiff-Appellee,

                               versus

NANNETTE M. COBB,
a.k.a. Nannette Cobb Ortiz,

                                            Defendant-Appellant.

                          ________________________

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

                                  (July 9, 2014)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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      Nannette Cobb appeals her 45-month sentence, imposed after pleading

guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. On appeal,

Cobb argues that the district court erred when it relied on uncontested statements in

the Presentence Investigation Report (PSI) to determine the losses from her

embezzlement scheme for the offense characteristic enhancement. Cobb also

argues that the court erred when it considered losses from embezzlement that

occurred before the statute of limitations when calculating the loss from her

scheme. Cobb raises both arguments for the first time in this appeal.

                                         I.

      Cobb was a Controller at South Exchange, Inc., who performed electronic

funds transfer transactions (EFTs) to disburse money from the company’s checking

account to other vendors. Cobb made several EFTs from South Exchange’s

account that eventually credited to her personal account, concealing the fraudulent

EFTs by including them with legitimate EFTs and labeling them as payments for

bona fide expenses. Her embezzlement scheme operated from May 2006 to May

2012, and she admitted to embezzling “approximately $978,537.53.” However,

the FBI calculated the total funds embezzled as $1,049,634.14. The probation

officer calculated a base offense level of seven, and Cobb received a 16-level

enhancement under § 2B1.1(b)(1)(I), because the loss from her theft was between

$1,000,000 and $2,500,000. Cobb received a two-level enhancement for abusing a


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position of private trust, and a three level reduction for her acceptance of

responsibility and guilty plea, resulting in a total offense level of 22. Based on her

criminal history category of I and the total offense level of 22, Cobb’s guideline

range was 41 to 51 months’ imprisonment. Although Cobb made eight objections

to the PSI, she made no objection to the FBI’s loss determination.

      At sentencing, the court denied Cobb’s request for a variance, sentenced

Cobb to 45 months’ imprisonment, and ordered a restitution award of

$1,024,634.14. After the court pronounced the sentence, Cobb did not object to

the guidelines calculation.

                                          II.

      We normally review the district court’s application of the Sentencing

Guidelines de novo, and the court’s calculation of losses for clear error. United

States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009). However, when a

sentencing issue is not raised before the district court, we review it for plain error.

United States v. Jones, 743 F.3d 826, 828 (11th Cir. 2014). The appellant must

show error that is plain and that affects substantial rights before we will exercise

our discretion to address an error that “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 829 (internal quotation marks

omitted).




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      The Guidelines provide a specific offense characteristic enhancement for

wire fraud that increases the offense level depending on the financial loss suffered

by victims or the intended loss from the crime. U.S.S.G. § 2B1.1(b)(1). In

preparing the PSI, the government must produce only a “reasonable estimate” of

the loss, not a precise loss determination. United States v. Renick, 273 F.3d 1009,

1025 (11th Cir. 2001) (per curiam). This estimate may be based on trial evidence,

undisputed statements in the PSI, or evidence presented during the sentencing

hearing. United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006).

Undisputed statements in the PSI are treated as admissions during sentencing.

United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010).

      The Guidelines also require the district court to consider all relevant conduct

when determining the loss enhancement, and we broadly interpret the relevant

conduct guideline y. United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996) (per

curiam). We expressly permit district courts to consider criminal conduct that

occurred outside the statute of limitations when calculating the loss amount,

pursuant to U.S.S.G. § 1B1.3(a). Id. at 765–66.

                                         III.

      Cobb argues that the district court plainly erred by basing her guidelines

calculation on losses over $1,000,000, when the factual proffer only supported a

loss amount of $978,537.53. Cobb argues that it was plain error to provide no


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evidence supporting the higher loss amount, and this error is harmful since her

sentence is outside the guidelines range under the correct total offense level. 1 The

government maintains that Cobb did not object to the loss amount in either her

written objections or at sentencing.

       The district court did not commit plain error by basing its offense

enhancement on the loss figure provided in the PSI. Undisputed statements in the

PSI are proper evidence for a factual finding. United States v. White, 663 F.3d

1207, 1216 (11th Cir. 2011); Hamaker, 455 F.3d at 1338. Therefore, the district

court was permitted to treat the loss determination in the PSI as fact when Cobb

made no objection to it before or at sentencing. While Cobb argues that the

government bears the burden of providing “reliable and specific evidence”

supporting its loss calculation, that burden is only placed on the government when

the defendant challenges the PSI’s accuracy. White, 663 F.3d at 1216. As no

challenge was made to the loss determination, the court did not err in relying on it

when calculating the loss.

       Second, Cobb argues that the district court plainly erred by including losses

from fraudulent transfers outside the five-year statute of limitations in the loss

calculation. Although Cobb admits that our precedent permits consideration of

       1
         Cobb explains that had the PSI indicated the $978,537.53 loss amount specified in the
stipulated factual proffer used at the plea colloquy, the total offense level would have been 20,
resulting in a recommended sentencing range of 33 to 41 months, which would have been the
appropriate range.
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crimes outside the statute of limitations when calculating the loss amount from

wire fraud, she argues that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), precludes consideration of stale crimes as relevant conduct because it

indicated that the Guidelines are punitive provisions separate from traditional

sentencing discretion. In response, the government argues that the district court

properly considered losses from the entire scheme as relevant conduct when

calculating the loss amount. Further, the Guidelines do not establish punishment

for stale crimes since they are advisory.

      As Cobb raises the issue for the first time on appeal, she must show a plain

error that affects substantial rights and seriously affect the fairness, integrity, or

public reputation of judicial proceedings. Jones, 743 F.3d at 828–29. The

Guidelines require the court to consider all relevant conduct when calculating a

base offense level, specific offense characteristics, or adjustments to the guidelines

range. U.S.S.G. § 1B1.3(a). If the conviction was committed within a larger

scheme, the court must consider all harm that resulted from “acts and omissions . .

. that were part of the same course of conduct or common scheme or plan as the

offense of conviction.” U.S.S.G. § 1B1.3(a)(2), (3). Following Booker, though

district courts now consider the Guidelines only in an advisory fashion, they are

instructed to consider not merely the charged conduct but all “relevant conduct,” in

calculating a defendant’s offense level. Hamaker, 455 F.3d at 1336. Thus, the


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district court was permitted to consider losses from conduct outside the statute of

limitations when calculating the loss enhancement under U.S.S.G. § 2B1.1(b).

Behr, 93 F.3d at 765–66.2 Also, Cobb’s citation to United States v. Williams is

unpersuasive. 527 F.3d 1235, 1243 (11th Cir. 2008) (holding that where a scheme

to defraud involves multiple wire transmissions, each transmission may form the

basis of a separate count.) Williams does not stand for the proposition that wire

transfers outside the limitations period are not part of an ongoing scheme. Id.

Therefore, the court committed no error by considering Cobb’s fraudulent conduct

prior to May 2008 when calculating the loss enhancement.

       Based upon the foregoing, the district court did not commit error by basing

its loss estimate on the undisputed information in the PSI, Hamaker, 455 F.3d at

1338, or by considering criminal conduct outside the relevant statute of limitations

when determining the loss from Cobb’s embezzlement. Behr, 93 F.3d at 765-66.

       Accordingly, we affirm.

       AFFIRMED.




       2
         Although Cobb cites Booker, that case did not overrule Behr, as it made no holding
about how the advisory guidelines should be applied. Under the prior precedent rule, we must
follow prior binding precedent “unless and until it is overruled by this court en banc or by the
Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per
curiam) (internal quotation marks omitted).
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