[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 20, 2007
No. 05-17111 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00005-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
W. LEE PATRICK, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(February 20, 2007)
Before ANDERSON and BARKETT, Circuit Judges, and STROM,* District
Judge.
PER CURIAM:
*
Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
W. Lee Patrick appeals his convictions for embezzlement and conspiracy to
embezzle from an organization receiving federal funds, in violation of 18 U.S.C.
§§ 371 and 666. He argues that his conviction must be reversed because: (1) the
district court erroneously admitted certain summary charts in evidence; (2) his
indictment was defective; (3) there was a material variance between the
indictment’s allegations and the evidence presented at trial; and (4) there was
insufficient evidence of guilt. Patrick also appeals his sentence of sixty-five
months, arguing that it is unreasonable, as well as the district court’s restitution
order, arguing that it was inaccurately calculated and unsupported by a
preponderance of the evidence.
During the time period relevant to this case, the YMCA of Valdosta-
Lowndes County, Georgia, was a non-profit organization that received more than
$10,000 per year in federal funding. Its executive director was Patrick’s co-
defendant, Nicky Tampas. Patrick was the owner and operator of Exterior Design,
a local landscaping and building company that performed work for the YMCA
over several years.
Patrick’s convictions were based on evidence of discrepancies between the
amount Patrick was paid by the YMCA and the amount that was actually due. The
government also presented testimony from individuals once employed by Patrick
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and/or the YMCA, as well as Patrick’s own incriminating statements to FBI
investigators and YMCA officials to support its contention that Tampas and
Patrick concocted and enacted a scheme whereby Patrick inflated his charges to the
YMCA, obtained free supplies, shifted his labor costs from projects for other
customers to the YMCA, and was paid by the YMCA for work on Tampas’ house
and gardens. Although Patrick testified at trial and denied any wrongdoing and
denied that he made any incriminating statements, this was ultimately a jury
question. We are satisfied that sufficient evidence was presented to support the
jury’s verdict. Furthermore, having carefully reviewed the record, we find no merit
to Patrick’s other arguments pertaining to his conviction.
However, we find reversible error with respect to the sentence and
restitution order imposed in this case. Under United States v. Lee, 427 F.3d 881
(11th Cir. 2005), a sentencing judge must reasonably estimate the amount of loss.
Here, the court estimated a loss of $1.4 million and ordered Patrick to pay
restitution in that amount. This figure, however, exactly reflected the YMCA’s tax
liability (as alleged in the Presentence Investigation Report), which arose from the
organization’s failure to pay payroll taxes for certain employees, most of whom
were unconnected to Patrick in any way. The organization’s tax liability bore no
proven relationship to the work Patrick did or did not perform for the YMCA, nor
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was it supported by any evidence of Patrick’s own involvement in the YMCA’s tax
evasion. Therefore, in determining the amount of loss, the district court
unreasonably used the YMCA’s estimated tax liability relating to employees
unconnected to Patrick. Additionally, the government conceded at oral argument
that the amount of loss also included amounts legitimately paid to Patrick for work
he did perform for the YMCA. These amounts should not have been included in
the amount of loss.
Accordingly, Patrick’s convictions are AFFIRMED, his sentence and
restitution order are VACATED, and the case is REMANDED for resentencing
consistent with this opinion.
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