[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 21, 2012
No. 11-14578
JOHN LEY
Non-Argument Calender
CLERK
__________________________
D.C. Docket No. 3:10-cr-00097-HES-JBT-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH ULYSSES GRANT, IV,
Defendant - Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________
(June 21, 2012)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Joseph Grant defrauded mortgage lenders, and he was convicted of two
counts of wire fraud. He appeals his 30-month prison sentence for those
convictions, contending that it is procedurally unreasonable because the district
court miscalculated his guidelines range.
I.
Grant, a former loan officer for Principal Mortgage and a former mortgage
broker for Sunny Mortgage, started his own company, Joe-Can-Do-It.Net. Grant’s
company marketed real estate and processed mortgages, specializing in “100%
Financing w/ Bad Credit [and] No Down Payment Home Purchase[s].” That
speciality was tied to Grant’s scheme to defraud lenders. Grant’s clients did not
have enough money to make down payments on home purchases, so he falsified
information in their loan applications and real estate purchase agreements to
mislead lenders into believing that his clients planned to make down payments.
Because of Grant’s fraud, lenders approved home loans for what they believed to
be between 80% and 90% of a home’s purchase price but that were actually for
100% of that price.
A federal grand jury indicted Grant on four counts of wire fraud in violation
18 U.S.C. § 1343. Grant pleaded not guilty. During the trial, the district court
granted the government’s motion to dismiss one of the counts, and the jury found
Grant guilty on two counts and not guilty on one count. The presentence
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investigation report recommended a base offense level of 7 under United States
Sentencing Guidelines § 2B1.1 (Nov. 2010). It added 14 levels under §
2B1.1(b)(1)(H) because the actual loss from Grant’s scheme was greater than
$400,000 but not more than $1,000,000. It added 2 more levels under § 3B1.3
because Grant used a “special skill” to execute the scheme. Grant’s recommended
total offense level was 23. Combined with his recommended criminal history
category of II, the recommended guidelines range was 51–63 months in prison.
Grant objected to several things in the PSR, including the actual loss
amount and the 2-level special skill enhancement. About the actual loss amount,
the government and Grant stipulated that the actual loss from Grant’s scheme was
between $120,000 and $200,000. About the special skill enhancement, Grant
argued that he did not use a special skill in perpetrating the fraud because (1) he
had no formal education, training, or licensing and (2) “his job was . . . fill[ing]
out loan applications, which does not require any kind of special skills.” The
government argued that the special skill enhancement was correct because Grant
had used a skill not possessed by members of the general public—“he understood
the mortgage industry, how it operated, and how to manipulate the loan process to
successfully obtain approvals in mortgage loans. . . . He knew where the holes
were.”
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The court overruled Grant’s objection, finding that he had used a special
skill in executing his mortgage-fraud scheme. It modified the PSR by reducing the
actual loss enhancement from 14 levels to 10 levels to reflect the parties’
stipulation. The result was a new total offense level of 19 and a new guidelines
range of 33–41 months in prison. The court adopted the modified PSR, varied
downward to give Grant credit for time served, and sentenced him to 30 months in
prison on each count, with each sentence to run concurrently.
II.
Grant contends that the district court procedurally erred in imposing his
30-month prison sentence, arguing that the court miscalculated his guidelines
range because he did not use a special skill to commit mortgage fraud.1 We
review a sentence for reasonableness and “ensure that the district court committed
no significant procedural error, such as improperly calculating the guidelines
range.” United States v. White, 663 F.3d 1207, 1215 (11th Cir. 2011). In
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Grant also argues that a district court cannot rely on evidence at trial to conclude that an
enhancement applies and, because the government did not present evidence at sentencing, the
government did not meet its burden of proving that the special skill enhancement applied in this
case. Our precedent forecloses Grant’s argument. See United States v. White, 663 F.3d 1207,
1216 (11th Cir. 2011) (“When a defendant challenges the factual basis that the PSR sets forth for
his sentence, the burden is on the government to prove the disputed facts by a preponderance of
the evidence. The district court may base its findings of fact at sentencing on evidence presented
at trial, undisputed statements in the PSR, and evidence presented at the sentence hearing.”
(emphasis added) (citation omitted)).
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determining whether the district court improperly calculated the guidelines range,
we review for clear error the court’s factfindings and review de novo its
application of the law to those facts. United States v. De La Cruz Suarez, 601
F.3d 1202, 1219 (11th Cir. 2010). “When a defendant challenges the factual basis
that the PSR sets forth for his sentence, the burden is on the government to prove
the disputed facts by a preponderance of the evidence. The district court may base
its findings of fact at sentencing on evidence presented at trial, undisputed
statements in the PSR, and evidence presented at the sentence hearing.” White,
663 F.3d at 1216.
The sentencing guidelines provide a 2-level enhancement “[i]f the defendant
. . . used a special skill[] in a manner that significantly facilitated the commission
or concealment of the offense.” U.S.S.G. § 3B1.3. The commentary defines a
“special skill” as one “not possessed by members of the general public and usually
requiring substantial education, training or licensing. Examples would include
pilots, lawyers, doctors, accountants, chemists, and demolition experts.” Id. cmt.
4. “If an ‘average person off the street’ does not possess the skill, then the skill is
considered ‘special’ for the purposes of applying the enhancement.” De La Cruz
Suarez, 601 F.3d at 1219 (quoting United States v. Calderon, 127 F.3d 1314, 1339
(11th Cir. 1997)). A special skill does not require formal education, see United
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States v. Foster, 155 F.3d 1329, 1331 (11th Cir. 1998), and “may be obtained
through life experience and self study,” United States v. Batista De La Cruz, 460
F.3d 466, 468 (3d Cir. 2006).
The evidence presented at trial and undisputed statements in the PSR show
that Grant gained a detailed knowledge of loan-application and loan-processing
procedures during the three years he worked as a loan officer or mortgage broker
before committing mortgage fraud. That knowledge is a special skill within the
meaning of U.S.S.G. § 3B1.3 because “an average person off the street does not
possess” it. De La Cruz Suarez, 601 F.3d at 1219 (quotation marks omitted).
The evidence showed that Grant fraudulently inflated his clients’ monthly
incomes and bank-account balances on their loan applications, and three mortgage
underwriters testified that a client’s monthly income and bank-account balance
influence a lender’s decision to approve a loan. The evidence also showed that
Grant had his clients execute real estate purchase agreements that listed artificially
inflated purchase prices. An underwriter testified that lenders review copies of
those agreements “to know how much the property was actually being sold for and
what the terms of the purchase agreement were to make sure they were in line with
[their] guidelines.” Also, one of the clients that Grant used in his scheme testified
that Grant gave her cash in the amount of the fraudulent, nonexistent down
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payment and told her to buy a cashier’s check in that amount at her bank. She told
the jury that Grant said she had to present that check at closing “to show that th[e]
money came from [her].” An underwriter testified that “any money that’s due at
closing, that’s supposed to come directly from the borrow[er] and supposed to
come out of the bank account that’s listed on the [the borrower’s loan
application].” That evidence was enough to show that Grant used his knowledge
of loan-processing and loan-application procedures, which is a special skill, to
commit mortgage fraud. The district court did not err in applying the 2-level
special skill enhancement.
AFFIRMED.
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