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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11781
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00002-WLS-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIMBERLY MICHELLE BANKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(July 13, 2016)
Before WILSON, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Kimberly Michelle Banks appeals her total 192-month sentence, imposed
within the advisory guideline range, after being found guilty by a jury of one count
of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 (Count
One), seven counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 2-8),
six counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1),
(c)(5) (Counts 9-15), and five counts of theft of government money, property or
records, in violation of 18 U.S.C. §§ 2 and 641 (Counts 16-20). Banks asserts
several issues regarding her sentence on appeal, which we address in turn. After
review, 1 we affirm Banks’ sentence.2
I. DISCUSSION
A. Aggravated Role Enhancement
Banks first contends the district court made both a factual and legal error by
finding that she played an aggravated role in the conspiracy, and, based on these
findings, wrongly enhanced her guideline range by four levels.
Pursuant to § 3B1.1(a), a defendant’s offense level will be increased by four
if the defendant “was an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). In
1
“We review a district court's application of the guidelines to the facts de novo and all
factual findings for clear error.” United States v. Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir.
2006). We review the substantive reasonableness of a sentence for an abuse of discretion. Gall
v. United States, 552 U.S. 38, 51 (2007).
2
Because we write for the parties, we set out only what is necessary to explain our
decision.
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assessing a defendant’s role in the offense, district courts should consider the
following factors: (1) “the exercise of decision making authority,” (2) “the nature
of participation in the commission of the offense,” (3) “the recruitment of
accomplices,” (4) “the claimed right to a larger share of the fruits of the crime,”
(5) “the degree of participation in planning or organizing the offense,” (6) “the
nature and scope of the illegal activity,” and (7) “the degree of control and
authority exercised over others.” U.S.S.G. § 3B1.1, comment. (n.4). However, it
is not required that all these considerations exist in any one case. United States v.
Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005). Still, “there must be evidence that
the defendant exerted some control, influence or decision-making authority over
another participant in the criminal activity.” United States v. Martinez, 584 F.3d
1022, 1026 (11th Cir. 2009).
The district court did not err in applying the aggravating role enhancement
under § 3B1.1(c). The district court concluded Banks met most of the factors laid
out in § 3B1.1, application note 4, based on sufficient evidence presented at the
sentencing hearing. The Government showed Banks was a major participant in the
fraud and played a key role in organizing the scheme, and worked in a planning
role in the conspiracy by selecting victims and gathering information to use in
preparing the fraudulent returns. Evidence presented also showed Banks had
decision-making authority because she selected where to send the fraudulent
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refunds. Banks recruited at least one accomplice, and exercised a strong degree of
control and authority over others. Moreover, the evidence supported that Banks
managed and supervised at least one other participant in the conspiracy. See
United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010) (stating a
defendant need only manage or supervise one other participant for the
enhancement to apply); U.S.S.G. § 3B1.1, comment. (n.2) (stating that, for the
enhancement to apply, “the defendant must have been the organizer, leader,
manager, or supervisor of one or more other participants”). Finally, the
Government offered sufficient evidence to prove the nature and scope of the
conspiracy’s illegal activity was extensive.
While the Government offered evidence that Banks received some of the
proceeds from the fraudulent tax returns, the evidence did not show she received “a
larger share of the fruits of the crime” as required by U.S.S.G. § 3B1.1. Although
evidence did not show that Banks met each of the criteria enumerated in the
comments to § 3B1.1, the evidence strongly supported that she met most. Because
it is not required that every factor be met in any one case, this is sufficient for the
district court to determine Banks was an organizer and ringleader of the scheme.
Ramirez, 426 F.3d at 1356. Accordingly, we affirm as to this issue.
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B. Obstruction of Justice Enhancement
Banks asserts the district court erred both in making and applying its factual
findings in imposing an obstruction of justice enhancement. Banks contends the
court’s factual findings were erroneous, alleging that Agent John Relyea, the agent
leading the IRS investigation into Banks, exaggerated the amount of time he spent
tracking down two individuals Banks implicated in filing the fraudulent tax
returns. Banks also asserts that, in addition to not being false, her statements were
not material.
A two-level enhancement is provided if the defendant “willfully obstructed
or impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense.”
U.S.S.G. § 3C1.1. A defendant obstructs or impedes justice by “providing a
materially false statement to a law enforcement officer that significantly obstructed
or impeded the official investigation or prosecution of the instant offense.” Id.
§ 3C1.1, comment. (n.4(G)). A “material statement” is defined as one that “if
believed, would tend to influence or affect the issue under determination.”
U.S.S.G § 3C1.1, comment. (n.6). To establish the defendant’s conduct resulted in
an actual hindrance, “the government must present evidence of what action it took
that it would not have taken” had the defendant not provided false information.
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United States v. McGuinness, 451 F.3d 1302, 1305 (11th Cir. 2006) (quotations
omitted).
The district court did not err in imposing the enhancement for obstruction of
justice. Banks’ statements were false and material. At sentencing, the district
court made a factual finding that Banks implicated two individuals as responsible
for the fraudulent tax returns and that her accusations were false. Then, after a
thorough analysis, it concluded that Banks’ false statements were material. The
court also found Banks’ false statements actually hindered the official investigation
or prosecution of her case. Agent Relyea testified that he spent three or four weeks
tracking down and interviewing the two individuals and the Government offered
evidence that, had it not been for Banks’ statements, Relyea would not have taken
this time to interview them. See McGuinness, 451 F.3d at 1305. Accordingly, we
affirm as to this issue.
C. Loss Amount
Banks contends the district court erred by finding the loss amount was more
than $400,000, and, therefore, enhancing the guideline range by 14 levels, rather
than 8 levels. Banks asserts that, while the Government showed that returns in the
names of certain nursing home residents and Golden Peanut employees were
fraudulent, it did not show all of the tax returns filed from Banks’ IP addresses
were fraudulent. Banks contends that, based on the data in the Government’s
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exhibits at trial, the total loss should be calculated as $118,061, which is
substantially below the Government’s estimates.
For theft crimes, the Sentencing Guidelines provide a base offense level, and
then increase the level based on the value of the loss caused. U.S.S.G. § 2B1.1(a),
(b)(1). Under the Guidelines, a defendant’s base offense level is increased by 14
levels if the loss is more than $400,000 but less than $1,000,000. U.S.S.G.
§ 2B1.1(b)(1)(H) (Nov. 2013). A court is only required to make a reasonable
estimate of the loss suffered, and a sentencing judge is in a unique position to
assess the evidence and estimate the loss. U.S.S.G § 2B1.1(b)(1), comment.
(n.3(C)). The court must use the greater of actual or intended loss.
U.S.S.G. § 2B1.1, comment. (n.3(A)).
The district court did not err, much less plainly err, 3 in finding the
Government proved by a preponderance of the evidence that the intended loss of
Banks’ offense was greater than $400,000. The Government provided ample
evidence of the amount of loss and the court made a reasonable estimate of the loss
3
Although Banks challenged the amount of intended and actual loss that resulted from
her crime before the district court, she raises a new argument for the first time on appeal.
Specifically, before the district court, she argued the loss calculation was incorrect because it
included returns filed from unknown IP addresses. However, on appeal, she argues for the first
time the calculation is incorrect because the Government did not prove the returns filed from
Banks’ IP address were fraudulent. As Banks is proceeding on a different legal theory on appeal
than she did at trial, we review her argument only for plain error. See United States v. Massey,
443 F.3d 814, 819 (11th Cir. 2006) (holding unless the objection is “clear enough to inform the
district court of the legal basis for the objection,” the objection is not preserved); United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000) (stating where a defendant raises a sentencing
argument for the first time on appeal, we review only for plain error).
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after hearing the evidence at trial, reviewing the summary charts prepared by the
IRS, and hearing the testimony of Agent Relyea at the sentencing hearing. See
United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2009) (stating when a
defendant challenges the attributed loss, the government must provide evidence to
establish the loss, and the court must make factual findings sufficient to support its
conclusions); see U.S.S.G § 2B1.1(b)(1). In Relyea’s testimony, he explained the
charts admitted into evidence reflected he determined the amount of fraud that
Banks was responsible for by flagging refunds that had two or more of the
following similarities: they were filed from the same IP addresses; they claimed
the exact same dollar amount; and they claimed Golden Peanut as an employer.
The district court, in the best position to examine all of the evidence, found all 224
tax returns “are sufficiently connected to the defendant such that she should be
held accountable for those.” Further, the court found there were 187 victims and
sufficient evidence connected these victims to Banks. Moreover, even if the court
had only included the amount of loss proven at trial, the figure would be $517,853,
exceeding the $400,000 required threshold for the enhancement imposed. The
district court did not plainly err in crediting the charts and the agent’s testimony as
establishing by a preponderance of the evidence a loss figure greater than
$400,000. Accordingly, we affirm as to this issue.
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D. Substantive Unreasonableness
Banks alleges the district court erred by imposing a substantively
unreasonable sentence on a non-violent first-time offender. First, Banks alleges
the sentence the court imposed upon her was disproportionate to those imposed
upon her co-conspirators. Banks also contends the sentence was unreasonable
because the district court ignored her history and the facts of her offense. Banks
alleges her non-violent crimes do not justify a 192-month sentence and the court
did not take into account mitigating factors, including her status as a first-time
offender, her strong character references, and her education and work history.
The district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in § 3553(a)(2), including the need
to reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future conduct. See 18 U.S.C. § 3553(a). In determining a particular
sentence, the court should also consider other factors including “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” Id. § 3553(a)(6). It is within the bounds of
reasonableness for a district court to impose a lengthier sentence on the organizer
or leader of a conspiracy than on the other offenders. See United States v. Thomas,
446 F.3d 1348, 1357 (11th Cir. 2006) (rejecting an argument that imposing a
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longer sentence on the sole coordinator of a robbery was unreasonable).
The weight given to any specific factor is committed to the sound discretion
of the district court and a district court does not commit reversible error simply
because it attaches significant weight to a single § 3553(a) factor. United States v.
Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). Finally, although a sentence
within the guideline range is not automatically presumed to be reasonable, it is
ordinarily expected to be so. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008).
Banks has not shown the district court abused its discretion in imposing her
192-month total sentence. Banks’ argument her sentence is unreasonable because
her codefendants received lower sentences is unconvincing because those
defendants were not similarly situated to her. See 18 U.S.C. § 3553(a)(6).
Moreover, Banks was found to be the scheme’s principal leader and organizer, as
was previously discussed in detail. It was reasonable for the court to determine
this role was deserving of a more stringent sentence than those who worked as
intermediaries or at Banks’ direction. See Thomas, 446 F.3d at 1357.
There is no indication the district court failed to consider a relevant
§ 3553(a) factor or gave weight to any improper factor. See Williams, 526 F.3d at
1322. Banks’ argument the court overemphasized general deterrence and did not
take into account her lack of criminal history or the absence of violence involved
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in her offense is unavailing. The court did give strong weight to the need to
provide general deterrence, noting a particular need for deterring identity theft
crimes based on their devastating yet attractive nature. However, this weight was
within the bounds of its discretion, as general deterrence is “one of the key
purposes of sentencing.” See United States v. Pugh, 515 F.3d 1179, 1194 (11th
Cir. 2008).
Additionally, the court explicitly stated it considered Banks’ lack of criminal
history, but that the nature of the crime outweighed that consideration. The court
also attached strong weight to the fact Banks preyed upon elderly victims living in
a nursing home and used her position of trust, as their caregiver, to take advantage
of them. As the district court has authority to weigh relevant § 3553(a) factors,
making this assessment was proper. See Williams, 526 F.3d at 1322.
II. CONCLUSION
The district court did not err in enhancing Banks’ sentence for her role as an
organizer or leader, for obstruction of justice, or for a loss amount above $400,000.
Banks did not meet her burden of showing her sentence was unreasonable. Thus,
we affirm Banks’ 192-month sentence.
AFFIRMED.
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