                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________            FILED
                                                 U.S. COURT OF APPEALS
                              No. 11-11042         ELEVENTH CIRCUIT
                                                       APRIL 16, 2012
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                          CLERK

               D. C. Docket No. 8:09-cr-00346-VMC-TBM-2


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,
     versus

LYNDA WILSON,

                                                         Defendant-Appellant.

              _________________________________________

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

                              (April 16, 2012)

Before EDMONDSON, BARKETT, and MARCUS, Circuit Judges.


PER CURIAM:

     Lynda Wilson appeals her 41-month (above-guidelines) sentence for
making a false statement on a mortgage application, in violation of 18 U.S.C. §

1014. No reversible error has been shown; we affirm.

      In completing a residential loan application, Wilson stated falsely that she

earned an annual salary of about $60,000 from a local law firm when, in truth, she

earned only about $27,000 from the firm. The rest of Wilson’s stated income

represented the proceeds from CCL Services, a fraudulent business that Wilson

and her husband Charles created to steal money from Charles’s employer. As a

result of Wilson’s false statements, she and Charles obtained an initial mortgage

from Coast Bank to build a new home and obtained a refinanced mortgage through

Citi Mortgage. But for Wilson’s concealment of the true source of her income, the

banks would not have approved the loans. Based on the offense conduct and

Wilson’s criminal history, the probation officer calculated a guidelines range of 18

to 24 months’ imprisonment.

      The Presentence Investigation Report (“PSI”) also included -- in a section

titled “Offense Behavior Not Part of Relevant Conduct” -- detailed information

about Wilson’s involvement in the fraudulent operations of CCL Services. In

sum, Wilson and Charles created CCL Services, held it out to be a legitimate third-

party debt collection agency, and began doing business with Charles’s employer,

The Tampa Tribune. Charles, a credit manager at The Tampa Tribune, then

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approved payment of various fraudulent invoices from CCL Services and diverted

various refund checks intended for legitimate customers into the CCL Services

bank account. The Wilsons continued this elaborate scheme over a 10-year

period, during which they amassed more than $1 million in fraudulent income.

      Wilson objected to the inclusion of this information in the PSI because she

had never pleaded guilty to the conduct, but she stated expressly that she did not

object to the information’s factual accuracy. After considering the PSI, the

parties’ arguments, and the 18 U.S.C. § 3553 factors, the district court imposed a

17-month upward variance and sentenced Wilson to 41 months’ imprisonment.

The court explained that, although Wilson’s involvement with CCL Services was

not “relevant conduct” for purposes of U.S.S.G. § 1B1.3, her role in the fraudulent

scheme warranted an upward variance.

      On appeal, Wilson argues that the district court violated her Sixth

Amendment right to a jury trial when it varied upward based on alleged criminal

conduct that was neither admitted by her nor determined by a jury. We review

constitutional challenges to a sentence de novo. United States v. Lyons, 403 F.3d

1248, 1250 (11th Cir. 2005). And we review the district court’s factual

determinations for clear error. United States v. Rodriguez-Lopez, 363 F.3d 1134,

1137 (11th Cir. 2004). To conclude that a factual finding is clearly erroneous, we

                                         3
“must be left with a definite and firm conviction that a mistake has been

committed.” Id.

      In determining an appropriate sentence, the district court “may consider,

without limitation, any information concerning the background, character and

conduct of the defendant.” U.S.S.G. § 1B1.4; see also 18 U.S.C. § 3661. It is

well-established that a sentencing court can even consider “criminal acts for which

a defendant has not been charged or has been acquitted as long as those acts are

proved by a preponderance of the evidence,” and the court treats the sentencing

guidelines as advisory. United States v. Lindsey, 482 F.3d 1285, 1294 (11th Cir.

2007).

      That Wilson’s ongoing involvement in the CCL Services fraud scheme is

pertinent to her background, character, and conduct is clear. And we are

unconvinced that the district court clearly erred in determining that Wilson’s

participation in the scheme was proved by a preponderance of the evidence. First,

although Wilson objected to the inclusion of the factual details of the fraud

scheme in the PSI, she did not challenge their factual accuracy. As a result, she

admitted these factual allegations for purposes of sentencing. See United States v.

Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010). In addition, the government

presented the testimony of a United States Secret Service investigator and several

                                          4
exhibits -- including emails, bank records, and various business records -- which

established that Wilson was an active participant in the fraud. Because the district

court expressly treated the sentencing guidelines as advisory and Wilson’s

criminal conduct was proved by the preponderance of the evidence, the district

court was permitted to consider that conduct in formulating Wilson’s sentence.

See Lindsey, 482 F.3d at 1294.1

       We are also unpersuaded by Wilson’s attempt to distinguish her case --

where the court considered criminal acts that were still the subject of pending

criminal charges -- from cases where the sentencing court considered uncharged

criminal acts or criminal charges that had already been dismissed or acquitted. In

addressing why a sentencing court can consider acquitted conduct proved by a

preponderance of the evidence, the United States Supreme Court explained that

“sentencing enhancements do not punish the defendant for crimes of which [s]he



       1
          Contrary to Wilson’s contentions, the district court did not violate the rule established in
United States v. Booker, 125 S.Ct. 738 (2005). “Booker holds that ‘the Sixth Amendment right
to trial by jury is violated where under a mandatory guidelines system a sentence is increased
because of an enhancement based on facts found by the judge that were neither admitted by the
defendant nor found by the jury.’” United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.
2006) (emphasis in original). Because the district court in this case treated the sentencing
guidelines as advisory, no Booker error existed. See id.
         We also note that no Apprendi error existed because Wilson was sentenced below the
statutory maximum of 30 years’ imprisonment. See Apprendi v. New Jersey, 120 S.Ct. 2348
(2000) (concluding that “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).

                                                  5
was not convicted, but rather increase h[er] sentence because of the manner in

which [s]he committed the crime of conviction.” United States v. Faust, 456 F.3d

1342, 1347 (11th Cir. 2006) (citing United States v. Watts, 117 S.Ct. 633, 636

(1997)).

       The same rationale applies in this case. Wilson’s crime of conviction --

making a false statement on a mortgage application -- was connected directly to

her role in the CCL Services fraud scheme. That Wilson’s criminal conduct was

still the subject of pending criminal charges when the court announced her

sentence did not undermine the court’s authority to consider that conduct in

determining the appropriate sentence for Wilson’s offense of conviction.2

       AFFIRMED.




       2
        In addition, we note that the government moved to dismiss the remaining counts against
Wilson immediately after the court announced Wilson’s sentence. And we are unwilling to
distinguish Wilson’s case based solely on the precise timing of the government’s motion to
dismiss these remaining counts.

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