                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 08-13484                ELEVENTH CIRCUIT
                                                        SEPTEMBER 23, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                D. C. Docket No. 06-00309-CR-T-17MSS


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

DANIEL GOODHEART,


                                                        Defendant-Appellant.


                      ________________________

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

                          (September 23, 2009)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

       Daniel Goodheart appeals his 60-month sentence for conspiracy to defraud

the United States, 18 U.S.C. § 371. Reversible error has been shown; we vacate

and remand for additional proceedings.

       A jury convicted Goodheart, a prison psychologist, of joining a conspiracy

within the prison that filed false and fraudulent income tax returns. He provided

co-conspirators with social security numbers of inmates from prison system

databases and helped circumvent the prison’s mail system when sending out the

fraudulent tax returns. The total actual amount of fraudulent refunds received by

the conspirators was $902,487.87 while the total intended loss (based on the

number of returns filed and the amount of funds requested) of the scheme was

$2,733,525.00.

       Over Goodheart’s objection, the district court determined that the scope of

the entire conspiracy reasonably was foreseeable to him and attributed the entire

amount of the intended loss to him. Because the intended loss was over

$2,500,000.00 and less than $7,000,000.00, Goodheart’s base offense level of 6

was increased by 18 levels to 24. See U.S.S.G. § 2B1.1(a), (b)(1)(J).1 While the




       1
        For enhancement purposes, the greater of the actual or intended loss is used. U.S.S.G. §
2B1.1, comment. (n.3(a)).

                                               2
guidelines calculations resulted in a range of 78 to 97 months, operation of the

statutory maximum made Goodheart’s guidelines range 60 months. See 18 U.S.C.

§ 371.

         On appeal, Goodheart argues that the district court erred by attributing to

him the full amount of the intended loss because the loss that occurred before his

entry into the conspiracy should not be attributed to him.2 He seeks a remand so

that the court can determine the exact loss amount attributable to him. We review

the district court’s loss determination for clear error and questions of law under the

sentencing guidelines de novo. United States v. Woodard, 459 F.3d 1078, 1087

(11th Cir. 2006).

         “[T]he district court may hold all participants in a conspiracy responsible for

the losses resulting from the reasonably foreseeable acts of co-conspirators in

furtherance of the conspiracy.” United States v. Dabbs, 134 F.3d 1071, 1082 (11th

Cir. 1998); see also U.S.S.G. § 1B1.3(a)(1)(B). But to determine the liability for

the acts of others, the district court first must make individualized findings about

the scope of criminal activity undertaken by a particular defendant. United States

v. Hunter, 323 F.3d 1314, 1319-20 (11th Cir. 2003); see also U.S.S.G. § 1B1.3,

comment. (n.2).


         2
        Goodheart does not dispute the total of the intended loss, just the portion of that loss that
should be attributed to him.

                                                  3
      Here, the district court erred in attributing the entire intended loss amount to

Goodheart because trial testimony made clear that he joined the conspiracy after its

inception. See id. (explaining that “[a] defendant’s relevant conduct does not

include the conduct of members of a conspiracy [before] the defendant’s joining

the conspiracy, even if the defendant knows of that conduct”); United States v.

Word, 129 F.3d 1209, 1213 (11th Cir. 1997) (it is erroneous to hold a defendant

liable for loss resulting from before the defendant joined the conspiracy).

      And the district court made no required individualized findings about when

Goodheart joined the conspiracy. While trial testimony suggested that Goodheart

joined the conspiracy in June 2002, neither the indictment nor the district court’s

speculation about Goodheart’s close proximity to the leaders of the conspiracy

established a specific date. Thus, it is unclear what loss occurred before Goodheart

joined the conspiracy and how much of the intended loss should be attributed to

him. And it was the obligation of the district court to make these determinations.

See Hunter, 323 F.3d at 1319-20. Therefore, we vacate and remand so that the

district court can make the appropriate findings and determine the proper amount

of loss attributable to Goodheart.

      VACATED AND REMANDED.




                                          4
