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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14483
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00236-TJC-MCR-5
UNITED STATES OF AMERICA,
Plaintiff -Appellee,
versus
THOMAS WIMBERLY,
LISA WIMBERLY,
Defendants-Appellants.
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Appeals from the United States District Court
for the Middle District of Florida
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(February 26, 2013)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Thomas Wimberly appeals his sentence of one year and one day, and his
sister, Lisa Wimberly, appeals her sentence of 33 months of imprisonment, for
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conspiring to commit wire fraud. 18 U.S.C. § 1349. The Wimberlys argue that
they should not be held accountable for losses caused by their coconspirators in
which they were not directly involved and that their sentences are unreasonable.
Thomas also argues that he was entitled to a reduction of his offense level for his
minimal role in the conspiracy. We affirm.
The district court did not err in determining the amount of loss attributable to
the Wimberlys. A defendant is responsible for loss that “the defendant knew or,
under the circumstances, reasonably should have known, was a potential result of
the offense.” United States Sentencing Guidelines Manual § 2B1.1 cmt. n.3(A)(iv)
(Nov. 2011). The Wimberlys participated in a conspiracy to negotiate altered
personal checks, and the district court did not clearly err in finding that the
Wimberlys were responsible for the losses attributable to checks bearing the names
of and negotiated by their coconspirators. The Wimberlys admitted, by “fail[ing]
to object to [the] allegations of fact in [their presentence reports],” United States v.
Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), that the coconspirators shared
information about how to obtain personal checks that they altered by erasing the
magnetic ink character recognition line; decided to negotiate the checks in stores
using a verification system provided by Certegy Check Services, Inc., that was
unable to detect the alteration; and often traveled together to negotiate the checks.
The Wimberlys individually negotiated hundreds of fraudulent checks, and they
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knew in part, and reasonably could have foreseen, the extent to which their
coconspirators would act likewise. See United States v. McCrimmon, 362 F.3d
725, 731 (11th Cir. 2004); see also U.S.S.G. § 1B1.3 cmt. n.2. The Wimberlys
accompanied their coconspirators to negotiate fraudulent checks, which Lisa did
even after being released on bond, and Thomas admitted to federal agents that he
benefitted financially “from the execution of the scheme, while knowing [its]
nature and purpose.”
Thomas argues, for the first time, that the government failed to prove that
the conspiracy caused a loss of $231,640.90, but Agent Stephen Albano testified
about determining the loss using spreadsheets prepared by Certegy that listed the
checks negotiated by the conspirators at different stores. And Thomas does not
challenge the reliability of Albano’s testimony or the reliance of the district court
on that testimony. See United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir.
2009).
Thomas also, for the first time, argues that the district court failed to make
specific findings about his participation in the conspiracy, but we disagree. The
district court was entitled to reject Thomas’s arguments that he was less culpable
than his coconspirators and to base its decision on the undisputed information in
Thomas’s presentence report. See United States v. Bradley, 644 F.3d 1213, 1293
(11th Cir. 2011).
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The district court did not clearly err by denying Thomas a minimal role
reduction. A defendant is entitled to a four-point reduction of his offense level
only if he is “plainly among the least culpable of those involved in the conduct of
the group,” as evidenced by a “lack of knowledge or understanding of the scope
and structure of the enterprise and of the activities of others.” U.S.S.G. § 3B1.2(a)
& cmt. n.4. Thomas knowingly participated in a conspiracy to negotiate fraudulent
checks, negotiated more than 100 checks individually, aided his coconspirators,
and profited from their misdeeds. As found by the district court, even if Thomas
were “less involved than some others,” he failed to introduce any evidence that his
conduct was the least significant in the conspiracy.
The district court did not abuse its discretion in sentencing the Wimberlys.
Over the course of a year, the Wimberlys and three coconspirators negotiated more
than 1,000 fraudulent checks at various stores in two states that resulted in a loss
exceeding $200,000. With respect to Thomas, the district court reasonably decided
to vary 15 months below the advisory sentencing range of 27 to 33 months on the
grounds that Thomas was “substantively less involved than some of the big
players” but involved “not just in a miniscule basis” and that he had 36 prior
convictions for crimes ranging from burglary and grand theft to the possession and
sale of drugs. See 18 U.S.C. § 3553(a). Thomas’s sentence of 12 months and one
day was within the sentencing range that he requested, and was far less than the
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maximum statutory term of 20 years of imprisonment. See United States v.
Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). With respect to Lisa, the district
court imposed a sentence within her advisory guideline range of 30 to 37 months
of imprisonment, which we ordinarily expect to be reasonable. See United States
v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The district court rejected Lisa’s
arguments for leniency based on motherhood and her religious background and
reasonably determined that a sentence of 33 months of imprisonment would best
address her role as an “active member, if not the most active member” in the
“fairly brazen and fairly organized” conspiracy, her recidivism and disregard for
the terms of her release on bond, and her criminal record. See 18 U.S.C.
§ 3553(a). Lisa argues that the district court erroneously “imputed a criminal
history to her based on her mere arrests alone,” but the district court was entitled to
consider Lisa’s 20 arrests for offenses involving fraud as well her nine convictions
in Florida courts for offenses that included petit theft and presenting worthless
checks. Id. § 3553(a)(1). The Wimberlys’ sentences are reasonable.
We AFFIRM the Wimberlys’ sentences.
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