[DO NOT PUBLISH]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).
2
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.
3
“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)).
4
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.
9