[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 29, 2008
No. 08-11365 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00048-CR-4-SPM-WCS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIELLE M. KIMBROUGH,
a.k.a. Danielle Keeton Dodson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 29, 2008)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Danielle M. Kimbrough appeals her 24-month
sentence for thirteen counts of making, uttering, or producing a forged security of
an organization, in violation of 18 U.S.C. § 513(a). After review, we affirm.
Kimbrough worked as a bookkeeper at Association Management Sources,
Inc. (“AMS”), which managed ten private associations and about twenty-five bank
accounts those associations operated. Over a two-year period, Kimbrough forged
eighty-five unauthorized checks and embezzled $183,851.94 from AMS. The
checks bore the stamped signature of AMS’s owner, Susan Cabrera, even though
the signature stamp was to be used only in emergencies. The unauthorized checks,
ranging from $500 to $3,500, were deposited into Kimbrough’s personal bank
account. Further investigation by a certified public accountant revealed that
Kimbrough had moved money between AMS’s client accounts and AMS’s main
account to conceal her activities.
Following her arrest, Kimbrough admitted to forging the checks and
depositing them in her account. She also related that she deleted checks from the
computer after they were printed and would reconcile AMS’s records to cover the
fraudulent checks.
Kimbrough’s presentence investigation report (‘PSI”) recommended, inter
alia, a two-level increase in Kimbrough’s offense level, pursuant to U.S.S.G.
§ 2B1.1(b)(9)(C), because the offense involved sophisticated means. Specifically,
2
the PSI stated that, although Kimbrough’s fraud scheme was not sophisticated in
nature, Kimbrough “used elaborate means to fraudulently conceal the offense.”
Kimbrough objected to the sophisticated means enhancement, arguing that her
offense was a “garden variety” embezzlement scheme.
At the sentencing hearing, Kimbrough testified that she would write a check
to herself by entering an amount into a computer software program, QuickBooks,
print out the check, and then delete the entry. In order to hide the transaction from
the bank statements, Kimbrough would make fictitious entries in QuickBooks or
write fictitious checks made payable to AMS from sources she fabricated.
Kimbrough also two or three times transferred funds from one of AMS’s client’s
accounts to AMS’s primary account.
Cabrera, AMS’s owner, also testified at the hearing. Cabrera explained that
Kimbrough entered some of the transactions into different tax years in
QuickBooks, such that they could not be detected, and, to uncover the full extent of
Kimbrough’s fraud, Cabrera had to hire a forensic accountant, a tax accountant and
a CPA.
The district court overruled Kimbrough’s objection to the sophisticated
means enhancement, concluding that the offense was not a “garden variety”
embezzlement. The district court explained that “[w]hile each step in the
3
defendant’s crime was not sophisticated, the total scheme involved more than
minimal planning, and it was sophisticated.” The district court noted that even if
it had sustained Kimbrough’s objection, it would have imposed the same sentence
as a variance from the guidelines “to reflect the extended duration of the offense,
the complexity and level of deceit involved.”
With a total offense level of 15 and a criminal history category of I,
Kimbrough’s advisory guidelines range was 18 to 24 months’ imprisonment. After
considering the factors in 28 U.S.C. § 3553(a), the district court imposed a 24-
month sentence.
On appeal, Kimbrough argues that the district court erred in applying the
sophisticated means enhancement because her offense did not involve any
particularly complicated actions.1
Section 2B1.1(b)(9)(C) of the Sentencing Guidelines provides for a two-
level increase in a defendant’s offense level if the offense involved “sophisticated
means.” The commentary defines “sophisticated means” as:
especially complex or especially intricate offense conduct pertaining
to the execution or concealment of an offense. For example, in a
telemarketing scheme, locating the main office of the scheme in one
jurisdiction but locating soliciting operations in another jurisdiction
1
In addressing a § 2B1.1(b)(9)(C) enhancement, we review the district court’s factual
findings for clear error and the application of the guideline provision to those facts de novo.
United States v. Humber, 255 F.3d 1308, 1311 (11th Cir. 2001).
4
ordinarily indicates sophisticated means. Conduct such as hiding
assets or transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily
indicates sophisticated means.
U.S.S.G. § 2B1.1, cmt. n.8(B).
We conclude that the district court did not err in applying the two-level
sophisticated means enhancement. Kimbrough’s offense involved repeated
fraudulent conduct occurring over an extended period of time, and, to conceal her
offense, she used her specialized knowledge of her company’s bookkeeping
operations, created fictitious entries in the accounting software and wrote checks to
her company from sources she fabricated.
We also reject Kimbrough’s claim that the district court applied the wrong
standard by stating that she engaged in more than minimal planning. Although the
district court mentioned that the scheme involved more than minimal planning, the
district court also found that Kimbrough’s offense was not ordinary embezzlement
and “was sophisticated.” A review of the record as a whole indicates the district
court was aware of and applied the applicable “sophisticated means” standard
found in U.S.S.G. § 2B1.1(b)(9)(C).
AFFIRMED.
5