[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12771 FEB 23, 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
________________________
(February 23, 2012)
Before DUBINA, Chief Judge, MARCUS, and MARTIN, Circuit Judges.
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).
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
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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.
“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
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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)).
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. §
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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
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.
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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. 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
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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 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.
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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). We have stated that, if a
defendant does not object to a fact contained in the prosecution’s factual recitation
during a plea colloquy, that fact is deemed admitted. See United States v. Shelton,
400 F.3d 1325, 1330 (11th Cir. 2005) (holding that there was no error when a
defendant admitted to part of his drug quantity enhancement during a plea
colloquy, part during sentencing, and made no objections to the PSI).
The government stated during the factual proffer at the Rule 11 hearing that
there were 310 individual victims. Andrulonis agreed to the factual proffer
without objection. Accordingly, Andrulonis is bound by the government’s factual
proffer. Since the proffer included 310 victims, we conclude that the district court
did not clearly err in determining that there were more than 250 victims and
applying the appropriate guideline enhancement.
IV.
We review the validity of a sentence appeal waiver de novo. United States
v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). We enforce a sentence appeal
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waiver if the government shows either “(1) the district court specifically
questioned the defendant concerning the sentence appeal waiver during the Rule
11 colloquy, or (2) it is manifestly clear from the record that the defendant
otherwise understood the full significance of the waiver.” Id. at 1351. Where an
appeal waiver is specifically discussed during the Rule 11 colloquy, we have
consistently enforced them, according to their terms, when the district court
specifically questioned the defendant during the plea colloquy about the appeal
waiver, adequately explained the significance of the appeal waiver, and confirmed
that the defendant understood the full significance of the appeal waiver. United
States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005).
The record demonstrates that Theodore’s appeal waiver was specifically
discussed during the Rule 11 colloquy. The district court informed Theodore that
he was giving up his right to appeal his sentence unless it exceeded the statutory
maximum or the guideline range and confirmed his understanding of the waiver.
The district court specifically found that the waiver was knowing and voluntary.
Moreover, per the terms of the appeal waiver, Theodore can only appeal his
sentence if it was in excess of the statutory maximum, the result of an upward
departure or variance, or if the government appealed the sentence. The district
court imposed a low-end guideline sentence within the statutory maximum. The
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government did not appeal the sentence. Thus, Theodore cannot challenge his
sentence on appeal. Because Theodore only raises sentencing issues on appeal, we
dismiss his appeal as barred by the appeal waiver without proceeding to the merits.
DISMISSED IN PART; AFFIRMED IN PART.
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