                                                           [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                  ________________________            FILED
                                            U.S. COURT OF APPEALS
                         No. 11-12771         ELEVENTH CIRCUIT
                                                  APRIL 30, 2012
                     Non-Argument Calendar
                                                   JOHN LEY
                   ________________________
                                                     CLERK

               D.C. Docket No. 0:10-cr-60311-DMM-2


UNITED STATES OF AMERICA,

                            llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
                              versus

ALBERT ANTHONY ANDRULONIS,

                         llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                   ________________________

                         No. 11-12939
                     Non-Argument Calendar
                   ________________________

               D.C. Docket No. 0:10-cr-60311-DMM-1


UNITED STATES OF AMERICA,

                            llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
                                       versus


JIMMY LEE THEODORE,


                                  llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                           ________________________

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

                                  (April 30, 2012)

                       ON PETITION FOR REHEARING


Before DUBINA, Chief Judge, MARCUS, and MARTIN, Circuit Judges.


      The court sua sponte grants the petition for rehearing, vacates our previous

panel opinion and substitutes the following opinion in lieu thereof.

PER CURIAM:

      Appellants Albert Anthony Andrulonis and Jimmy Lee Theodore appeal

their 132-month and 175-month total sentences, respectively. They both pled

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

unauthorized use of a debit card, in violation of 18 U.S.C. § 1029(a)(2), and one

count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).


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      On appeal, Andrulonis first challenges the imposition of a sentence

enhancement for causing a loss between $400,000 and $1,000,000. He argues that

the losses from Chase Bank caused by Theodore cannot be attributed to him, the

expenses from Holy Cross Hospital cannot be attributed to him, and the expenses

from Holy Cross Hospital were not reasonably foreseeable. Andrulonis next

argues that the district court incorrectly applied a sophisticated means enhancement

to his guideline range because he was involved in a run-of-the-mill fraud scheme

that involved no special planning or attempt at concealment. Finally, Andrulonis

argues that the district court incorrectly calculated the number of victims, because

it included victims who were not connected to Andrulonis or did not sustain any

actual loss.

      Theodore, in turn, argues that various sentencing enhancements were

incorrectly included in his guideline range, and that his sentence is substantively

unreasonable. However, Theodore signed an appeal waiver that the government

urges us to enforce before reaching the merits of his claims.

                                          I.

      Andrulonis first challenges the district court’s determination that the amount

of loss was between $400,000 and $1,000,000.




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      “The district court’s determination of loss is reviewed for clear error.”

United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011), cert. denied, ---

S. Ct. ----, (No. 11-7635) (Jan. 09, 2012). A district court’s interpretation of the

sentencing guidelines is reviewed de novo. Id. A failure to object to the factual

allegations in the PSI with specificity and clarity will be deemed an admission by

the defendant. United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).

      Loss is the greater of the actual loss or intended loss. U.S.S.G. § 2B1.1

comment. (n. 3(A)). Actual loss is the reasonably foreseeable pecuniary harm that

resulted from the offense. U.S.S.G. § 2B1.1 comment. (n. 3(A)(i)). Intended loss

is the pecuniary harm that was intended to result from the offense, even if the harm

was impossible or unlikely to occur. U.S.S.G. § 2B1.1 comment. (n. 3(A)(ii)).

Pecuniary harm is a harm that is readily measurable in money, and does not include

things such as emotional distress and harm to reputation. U.S.S.G. § 2B1.1

comment. (n. 3(A)(iii)). A reasonably foreseeable pecuniary harm is one that the

defendant knew or reasonably should have known was a potential result of the

offense. U.S.S.G. § 2B1.1 comment. (n. 3(A)(iv)). Interest, finance charges, late

fees, penalties, and other similar costs are specifically excluded from a loss

calculation. U.S.S.G. § 2B1.1 comment. (n. 3(D)(I)).




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      The government must support its loss calculation with reliable and specific

evidence; however, a sentencing court does not need to make a precise

determination of loss, but only a reasonable estimate given the available

information. Barrington, 648 F.3d at 1197.

      A participant in a conspiracy may be held responsible for the losses resulting

from the reasonably foreseeable acts of co-conspirators in furtherance of the

conspiracy. United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010), cert.

denied, Alrarez v. United States, l131 S. Ct. 1540 (2011); see also U.S.S.G. §

1B1.3(a)(1)(B) (stating that, in the case of jointly undertaken criminal activity, all

reasonably foreseeable acts and omissions of others in furtherance of the criminal

activity can count towards offense characteristics). A court must first make

individualized findings concerning the scope of the defendant’s criminal activity,

and then may consider all reasonably foreseeable acts of others in the jointly

undertaken criminal activity. Id. A failure to make such individualized findings

does not require us to vacate a sentence if the record supports the district court’s

offense conduct determination. United States v. Petrie, 302 F.3d 1280, 1290 (11th

Cir. 2002).

      While the district court did not make an individualized finding attributing

the activities of Andrulonis’s co-defendants to him, the record is more than


                                           5
sufficient to support the district court’s determinations. Andrulonis, Theodore, and

the other conspirators worked closely to carry out their identity theft scheme.

Stealing patient information from Holy Cross Hospital was a reasonably

foreseeable act of that scheme in furtherance of the conspiracy, as was using the

stolen information to cause losses to various Chase Bank accounts. Accordingly,

we conclude that the activities of the conspiracy, and the losses sustained by Holy

Cross Hospital and Chase Bank, were properly attributed to Andrulonis during

sentencing.

      Finally, given the offense conduct before us, we conclude that the expenses

incurred by Holy Cross Hospital were reasonably foreseeable. Accordingly, we

hold that the district court correctly arrived at the loss amount and the associated

guideline enhancement.

                                          II.

      Andrulonis’s second challenge is to the sophisticated means enhancement

applied by the district court.

      We review a district court’s finding that sophisticated means were used for

clear error. Barrington, 648 F.3d at 1199. The sophisticated means enhancement

is appropriate for especially complex or especially intricate offense conduct, during

either execution or concealment of the conduct. U.S.S.G. § 2B1.1 comment. (n.


                                           6
8(B)). Only the totality of the scheme needs to be sophisticated, not each

individual action. Barrington, 648 F.3d at 1199. Repetitive and coordinated

activities by numerous individuals using sophisticated technology can justify a

sophisticated means enhancement. See United States v. Ghertler, 605 F.3d 1256,

1267-68 (11th Cir. 2010).

      In Ghertler, we stated that the defendant qualified for a sophisticated means

enhancement because he conducted extensive research to develop inside

information to facilitate a scheme to defraud; used unwitting couriers to pick up

and deliver proceeds of his frauds to conceal the scheme; forged false company

documents and internal numbers; and used unwitting third parties, despite other

times making little or no effort to conceal his identity or fraud. Id. Similarly, in

United States v. Campbell, 491 F.3d 1306 (11th Cir. 2007), we held that a

sophisticated means enhancement was appropriate because the defendant used

campaign accounts and credit cards issued to other people to conceal cash

expenditures and cover his tax fraud. Id. at 1315.

      We conclude from the record that Andrulonis and Theodore developed a

sophisticated scheme to steal identities and fraudulently obtain money. They hired

three employees in the healthcare field to feed them confidential patient data. They

combined that data with publicly available information that was sufficient to defeat


                                           7
Chase Bank’s security measures. They created new accounts in the victims’ names

prior to transferring and withdrawing any money, to avoid detection. The district

court found it likely that they were also working with an insider at Chase Bank.

They attempted to hide their calls into Chase Bank by making their phone numbers

private. They frequently accessed the Chase Bank website from a public, rather

than a personal, computer. Accordingly, we conclude from the record that the

district court did not clearly err in determining that this offense conduct was

committed through sophisticated means.

                                         III.

      Finally, Andrulonis challenges the district court’s determination that more

than 250 victims were involved in his offense conduct.

      We review the factual findings for number of victims for clear error. See

United States v. Lee, 427 F.3d 881, 892 (11th Cir. 2005). The Sentencing

Guidelines provide for a six-level enhancement for identity theft offenses

involving more than 250 victims. U.S.S.G. § 2B1.1(b)(2)(C). We have previously

held that victims of theft or fraud offenses include persons who suffer pecuniary

loss, even if those persons are reimbursed for their losses. See Lee, 427 F.3d at

894–95. Further, the Sentencing Commission has explained that “victim” under




                                          8
§ 2B1.1 includes “those individuals whose means of identification are . . . used” in

the offense. U.S.S.G. App. C, amend. 726.

      The district court based its finding that Andrulonis’s offense involved more

than 250 victims in part on the fact that he took 267 patient records from Holy

Cross Hospital. On appeal, Andrulonis argues that the finding is clearly erroneous,

because the individual victims were reimbursed and therefore suffered no loss.

However, this argument has been foreclosed by Lee. Further, Andrulonis does not

otherwise challenge the finding that the records he took from the hospital were

“used” in the identity theft operation. Therefore, we conclude that the district court

did not err in determining that the offense involved more than 250 victims.

      DISMISSED IN PART; AFFIRMED IN PART.




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