                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-16325                ELEVENTH CIRCUIT
                                                             JULY 1, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                 D. C. Docket No. 06-00390-CR-01-RWS-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SHUNITA SCOTT,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                               (July 1, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Shunita Scott challenges the order of restitution entered after her convictions

for mail fraud, 18 U.S.C. § 1341, making false statements, 18 U.S.C. § 1014, and

money laundering, 18 U.S.C. § 1957. Scott argues that the district court failed to

consider her ability to pay when it imposed restitution and failed to apportion that

restitution fairly between her and a codefendant. We affirm.

                                I. BACKGROUND

      Scott, a licensed real estate agent, and her boyfriend, Christopher Hill,

devised a scheme to defraud banks and elderly homeowners of money by inflating

purchase prices to increase brokerage commissions. On one occasion, Scott listed

a home owned by sixty-year-old Cynthia Mingo at $95,000 and later reduced the

price to $87,000. The day after Scott increased the price of the property to

$107,000, she paid to Mingo $100 earnest money on behalf of Hill. Mingo was

due $24,600 at closing and was issued two checks for $2,600 and $22,000.

Although none of the closing documents stated that Scott was owed $22,000,

Mingo endorsed the $22,000 check to Scott. Scott later paid Hill $22,000.

      In a second transaction, Scott represented Paul Gray, who was 78 years old.

Scott listed Gray’s house at $105,000, raised the price to $120,000, and lowered it

again to $105,000. The day after Scott again increased the price to $120,000, Hill

signed a purchase agreement. Gray was due $109,000 at closing, received two



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checks for $84,000 and $25,000, and endorsed the latter check and gave it to Scott

and Hill. Hill later deposited the check in his bank account.

      Scott’s third transaction caught the attention of federal agents who had been

investigating Hill for trafficking in drugs. Scott listed a home owned by 71-year-

old Roosevelt Callaway at $200,000. Callaway had confided in Scott that he

needed to sell the property for $185,000. Hill later agreed to purchase the property

for $185,000 and obtained a loan of $166,500 from American Residential

Mortgage. Scott and Hill decided to charge Callaway $32,225 at closing for

supposed repairs to the property by CBE Design, a company incorporated by Hill

less than one month before the closing. Neither the relationship between CBE

Design and Hill or the need for the repairs was disclosed to Callaway before

closing. American Residential later foreclosed on the property and sold the

property for $150,512.58.

      Scott was indicted for mail fraud, 18 U.S.C. § 1341, making false

statements, 18 U.S.C. § 1014, and money laundering, 18 U.S.C. § 1957. Scott

pleaded guilty to all three counts of the indictment. The presentence investigation

report provided a base offense level of seven, United States Sentencing Guideline §

2B1.1, and increased it by eight levels for a loss between $70,000 and $120,000,

id. § 2B1.1(b)(1)(E), by one level because the offense involved money laundering,



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id. § 2S1.1(b)(2)(A), by two levels for vulnerability of the victims, id. § 3A1.1, by

two levels for use of a special skill to commit or conceal the crime, id. § 2B1.3,

and by two levels for obstruction of justice, id. § 3C1.1. With a criminal history of

I, the report provided a sentencing range between 41 and 51 months of

imprisonment. Scott objected to a number of the enhancements.

      At the sentencing hearing, the government introduced evidence about how

Scott perpetrated the fraud. Lauren George, a forensic auditor, testified that Scott

acted as realtor for the seller and buyer, which allowed her to control the list price

and what documents were included in the closing package to facilitate the

fraudulent commissions. George testified that she examined the documents used in

the Callaway closing and found suspicious the absence of an acknowledgment that

the repairs had been completed. George also suspected that the addendum

charging Callaway for repairs was fraudulent because CBE Design was owned by

Hill and the business was not located at the address listed on the addendum. When

George questioned Callaway about the transaction, he stated that he was unaware

of the need for repairs and signed the addendum to complete the sale of the

property.

      Callaway testified that he had a ninth grade education and had lived in his

home for 32 years. He testified that he first saw the addendum when the



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government questioned him about the transaction; he had not initialed the

document; and the repairs purportedly made by CBE Design were unnecessary.

On cross-examination, Callaway acknowledged that he was made aware of the cost

of the repairs during closing; did not request a list of the repairs; signed a

document that agreed to payment for the repairs; and did not file a complaint

against Scott.

      Scott argued that the Callaway transaction should not be included as relevant

conduct because Callaway agreed to pay for the repairs. The district court found

that Callaway was railroaded, lacked sophistication about real estate transactions,

and “was put in a position to not be able to make a reasoned, thoughtful, deliberate

decision about this . . . as a result of fraud by [Scott] and Mr. Hill.” The court

included in the loss amount the $32,225 paid by Callaway.

      Scott made other objections to her sentence. Scott requested a reduction for

acceptance of responsibility, and the district court granted the request, which

lowered the sentencing range to a term between 30 and 37 months of

imprisonment. Scott argued for a sentence below the Guidelines on the ground that

the loss amount overstated her culpability because Hill benefitted most from the

fraud. Scott also argued that she derived no benefit from the Callaway transaction;




                                            5
the fraud provided only a slight increase in her commissions; and she had lost her

license to sell real estate and opened a catering business to provide for her children.

      Scott argued that the $32,225 lost by Callaway “should be apportioned to

Hill substantially” because he received a majority of the money. The district court

disagreed. The court found that, based on the expectation in a romantic

relationship that assets will be shared, Scott’s argument was “a bit naive.”

      The district court sentenced Scott to two concurrent terms of thirty months

of imprisonment. The court ruled that Scott was jointly and severally liable with

Hill for restitution of $72,602, and Scott was to begin payments after her release

from prison. The court imposed a special assessment of $300, but waived fines

and costs of incarceration based on its finding that Scott could not pay those

amounts in addition to the restitution.

                          II. STANDARDS OF REVIEW

      Scott’s challenges to the order of restitution involve three standards of

review. Objections not raised in the district court are reviewed for plain error.

United States v. Jones, 289 F.3d 1260, 1265 (11th Cir. 2002). We review de novo

the application of the Mandatory Victims Restitution Act of 1996. See United

States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000). We also review de novo




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the legality of an order of restitution and related findings of fact for clear error.

See United States v. Hasson, 333 F.3d 1264, 1275 (11th Cir. 2003).

                                  III. DISCUSSION

       Scott makes two challenges to the order of restitution. First, Scott argues for

the first time on appeal that the district court failed to consider her inability to pay

restitution. Second, Scott argues that the court failed to apportion restitution

according to her relative culpability. These arguments fail.

       An order of restitution under the Mandatory Victims Restitution Act, as

suggested by its title, is not discretionary. The Act provides that a district court

must “order restitution to each victim in the full amount of each victim’s losses as

determined by the court and without consideration of the economic circumstances

of the Defendant.” 18 U.S.C. § 3664(f)(1)(A). Scott was required to make

restitution because she defrauded at least three identifiable victims of property and

caused them pecuniary loss. 18 U.S.C. §§ 3663A(a), (c)(1)(A)(ii), (c)(1)(B). The

district court committed no error, much less plain error, by ordering Scott to pay

restitution.

       A district court has discretion to apportion restitution jointly and severally

among codefendants. When the court “finds that more than 1 defendant has

contributed to the loss of a victim, the court may make each defendant liable for



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payment of the full amount of restitution . . . .” 18 U.S.C. § 3664(h). The district

court was entitled to hold Scott liable for the full amount of the restitution because

she played a critical role in causing the victim’s loss. The district court did not

clearly err in its finding that Scott intended to benefit equally with Hill from the

money skimmed from the real estate transactions.

                                 IV. CONCLUSION

      The judgment against Scott is AFFIRMED.




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