United States v. Ratliff ( 2010 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    April 26, 2010
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 09-7037
    v.                                         (D.C. No. 6:08-CR-00035-JHP-1)
    (E.D. Okla.)
    JANICE LYNN RATLIFF,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
    Defendant Janice Lynn Ratliff appeals from the sentence imposed after she
    pled guilty to a criminal information charging her with one count of bank fraud,
    in violation of 18 U.S.C. § 1344. We affirm.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    I. Factual Background and Procedural History
    a. The Charge against Ms. Ratliff
    On May 27, 2008, a criminal complaint was filed against Ms. Ratliff,
    alleging that from September 2004 through April 2005, she “devised a scheme
    and artifice to defraud The Bank N.A., McAlester, Oklahoma, . . ., in order to
    obtain funds under the custody or control of said financial institution by means of
    false or fraudulent representations.” R., Vol. 1, at 8. The complaint further
    alleged that she “obtained approximately 10 checks totaling approximately
    $116,430.84, made payable to Wynn’s Electronics, a business owned by the
    defendant[’]s employer, Jim Wynn, Inc., and deposited them in the fraudulently
    established bank account at The Bank N.A., in violation of” 18 U.S.C. § 1344.
    R., Vol. 1, at 8. The FBI agent making the complaint, Special Agent James A.
    Dawson, attached an affidavit stating that Ms. Ratliff “exercised complete control
    over the disbursement of the funds deposited in the aforementioned account at
    The Bank N.A.” 
    Id. at 10.
    He further averred that “an additional approximately
    $378,642.80 in checks . . . were determined to have been cashed by Janice Ratliff
    at Latimer State Bank and Wilburton State Bank, both of Wilburton, Oklahoma[,
    and t]he proceeds of these checks remained in the custody and control of Janice
    Ratliff.” 
    Id. He asserted
    that a total of “approximately $495,073.64 in checks
    made payable to Jim Wynn, Inc., was embezzled by Janice Ratliff” between
    January 2003 and April 2005. 
    Id. -2- On
    June 11, 2008, the U.S. Attorney filed an information charging
    Ms. Ratliff only with one count of bank fraud involving $116,430.84 at The Bank,
    N.A. in McAlester. 
    Id. at 11-12.
    On June 13, 2008, Ms. Ratliff pled guilty to this
    charge. R., Vol. 2, at 8, 19. After two hearings, the district court sentenced her
    to sixty months’ imprisonment, thirty-six months of supervised release, a special
    assessment of $100.00, and restitution of $484,023.62. 
    Id., Vol. 1,
    at 88-91,
    Vol. 2, at 188-90.
    b. The Sentencing Hearings
    James P. Wynn, Ms. Ratliff’s former employer, testified at the first
    sentencing hearing. 
    Id., Vol. 2,
    at 37. Mr. Wynn stated that he is an entrepreneur
    who for many years had owned a business in Wilburton, Oklahoma, that sold
    electronics to consumers and leased specialized communications and other
    equipment to the oil and gas industry. 
    Id. at 37-38.
    His business was called
    “Jim Wynn, Inc.[,]” 
    id. at 59,
    and he had “a Radio Shack dealership as well as a
    U.S. Cellular agency.” 
    Id. at 38.
    He said that his wife had worked with
    Ms. Ratliff at a manufacturing plant in Wilburton and thought she was “a good
    gal[,]” so she was hired to work for him. See 
    id. He said
    that Ms. Ratliff was one
    of the “early” employees hired as his business grew, and she worked for him for
    about eighteen years. 
    Id. at 39-40.
    -3-
    On direct examination, Mr. Wynn testified that Ms. Ratliff initially did
    sales in the retail store, but she later became the “office manager[,]” 
    id. at 39,
    and
    was a “salaried employee[,]” earning “roughly 700 to 800 dollars a week, paid
    weekly[,]” 
    id. at 56-57.
    On cross-examination, he agreed that Ms. Ratliff worked
    for him as a “clerk in [his] Radio Shack business and [his] oil field business and
    other related businesses[.]” 
    Id. at 76.
    He later repeated that “she was the office
    manager.” 
    Id. at 81.
    He described her duties:
    She . . . was responsible for receiving stock, checking that into
    the computer, she did the payroll, kept track of the payroll records,
    kept track of the incoming stock invoices, put those in the
    receivables – I mean, payables file for my wife. She would do the
    daily reconciliation of the books, she dictated the – when I – in the
    absence of my wife and I, she was the one to take care of business,
    tell other employees what to do.
    
    Id. at 39-40.
    Mr. Wynn further testified that
    [a]s we earned her trust and as our business grew, we gave her
    additional duties to fulfill. Naturally, as a business grows and
    expands, there’s more to do, more to keep up with, and we gave her
    limited things to do. She never did – my wife was still the
    bookkeeper as far as keeping the general ledger, paying the bills.
    Ms. Ratliff was never on the signature card at any bank, never
    authorized to write any checks.
    In our absence, her duties were to receive payments, whether it
    be daily receipts from the retail operation or payments from the oil
    companies for the lease of equipment, and then in our absence, she
    would take those – receive those payments, show them received in
    the receivables file for my wife to then input into the billing
    computer, and then make deposits.
    
    Id. at 40-41.
    -4-
    Mr. Wynn stated that beginning in approximately August 2003, his wife,
    Dinah Wynn, was “totally out of the business for several months” due to medical
    problems. 
    Id. at 41.
    During the period of time that Mrs. Wynn was undergoing
    treatment, Mr. Wynn said that he was “out taking care of her as well and was out
    the majority of the time, then there fell more responsibilities to [Ms. Ratliff], but
    it was – she still never had anything to do with the payment of bills – . . . or
    anything to do with the checkbook.” 
    Id. at 42.
    Mr. Wynn said that he “trusted
    her like a sister. . . . trusted her through and through to the extent that [he and his
    wife] didn’t give her full control.” 
    Id. at 43.
    When asked if, due to his absence
    from work, he was not able to supervise the business as well as he wanted to, he
    answered: “Correct.” 
    Id. at 81.
    And when asked if he “left it with [his]
    employees to do the right thing[,]” he answered: “I left it with Ms. Ratliff, yes.”
    
    Id. He further
    stated that “[i]t was Mrs. Ratliff’s duty to deposit the checks
    correctly and by law when [my wife and I] had – when [my wife and I] were
    unable to. If Ms. Ratliff delegated this duty, which was not correct, to [another
    employee], that was beyond me.” 
    Id. at 78.
    He said that “[t]here was a stamp,
    ‘Jim Wynn, Incorporated.’ The policy was for her to stamp the checks and then
    make a deposit.” 
    Id. at 89-90.
    Mr. Wynn had directed his employees to use the
    stamp. 
    Id. at 90.
    On April 5, 2005, Mr. Wynn got a call from a vice president at Latimer
    State Bank, who said: “‘Janice is down here wanting to cash a $3,777 check.
    -5-
    What should I do?’” 
    Id. at 43;
    see also 
    id. at 75-76.
    Although Mr. Wynn said he
    did not know why Ms. Ratliff was “wanting to do that[,]” 
    id. at 43,
    he agreed to
    let her cash that check and “follow up on it” later because he “trusted her[,]” 
    id. at 44.
    He said he sometimes had employees cash checks for him and bring him
    the cash, but he “assume[d] that the bank and that employee were going to do it
    correctly and bring [him] the cash from a deposit.” 
    Id. at 77.
    He did not confront
    Ms. Ratliff at that time because he did not want to do so unjustly. 
    Id. at 44.
    But
    he later determined that Ms. Ratliff’s “scheme was . . . to stamp X number of
    checks – she may take eleven checks, stamp them with the stamp, take the twelfth
    check and take it and present it with a handwritten endorsement and say, I want to
    deposit these eleven, Ms. Cashier or Ms. Teller, but here, give me cash for this
    one.” 
    Id. at 90.
    Mr. Wynn then “research[ed] back to January 1 of ’03[,]” 
    id. at 67,
    and
    determined that “approximately [$]484,000 or [$]495,000 . . . was the loss
    experienced by the Wilburton bank, the Bank N.A., and Latimer State Bank”
    based on “actual physical evidence that [he and his wife] could produce.” 
    Id. at 50-51.
    He broke down the amounts allegedly converted by Ms. Ratliff through
    improperly handled checks as follows: “$252,620.55 through the Wilburton State
    Bank[,]” 
    id. at 66,
    “$115,327.56, through Latimer State Bank,” 
    id. at 66-67,
    and
    “$116,075.51 to the Bank, N.A.,” 
    id. at 67.
    The total of those three losses was
    $484,023.62. 
    Id. -6- Mr.
    Wynn testified that Ms. Ratliff had set up a bank account “in the name
    of ‘Janice Ratliff, doing business as Wynns Electronics[,]’” but she actually had
    no rights or permission from him to do business under that name. 
    Id. at 98,
    101.
    He stated that she falsified a bill of sale, forging Mrs. Wynn’s signature to it, and
    falsified other documents to present to The Bank, N.A., in order to “open[] a bank
    account in that name to further her scheme.” 
    Id. at 98-99.
    She then deposited
    checks for his company into her new account. 
    Id. at 99.
    Mr. Wynn testified that it had been very time-consuming to determine the
    loss, 
    id. at 50,
    65-66, 71, 88-90, and that three experts had told him that the fraud
    “was difficult to catch because of the way it was done[,]” 
    id. at 102;
    see also 
    id. at 71,
    88-89. When asked if over $400,000 had been stolen from him and he did
    not catch it for over a year, he answered: “True, true.” 
    Id. at 88.
    He explained
    that even if he “had had an accountant or a bookkeeper, three of them have stated
    that they probably would not have caught this embezzlement.” 
    Id. at 89.
    When
    asked why he had had difficulty determining that there was money missing from
    his business, Mr. Wynn also testified that he and his wife “were not in [their]
    normal means of business because of [his] wife’s illness and [his] time out of the
    business.” 
    Id. at 103.
    The government called no witnesses other than Mr. Wynn at the first
    hearing. See 
    id. at 103.
    Both sides offered certain documents into evidence
    during the initial sentencing hearing, and the district court continued the hearing.
    -7-
    At the second sentencing hearing, the government offered the testimony of
    Special Agent Dawson, who had investigated the fraud case against Ms. Ratliff.
    
    Id. at 128.
    His investigation involved reviewing the records, checks, and
    documents, and interviewing witnesses associated with this case at The Bank,
    N.A., in McAlester, and Wilburton State Bank and Latimer State Bank in
    Wilburton. 
    Id. at 128-29.
    Agent Dawson explained that Ms. Ratliff had used fraudulent documents to
    establish an account at The Bank, N.A., had deposited checks made payable to
    Jim Wynn, Inc. or an entity owned by Jim Wynn into that account, and then had
    used the money for her own purposes. See 
    id. at 129-30.
    He said she used
    approximately ten checks to procure approximately $116,000 at The Bank, N.A.
    
    Id. at 147.
    He said that at Wilburton State Bank, Ms. Ratliff had received cash or
    cashier’s checks after presenting checks, made payable to Jim Wynn, Inc. or an
    entity owned by Jim Wynn, which were endorsed on the back with her signature
    and/or the forged signature of Jim Wynn. 
    Id. at 130-32.
    Agent Dawson
    determined from talking to Mr. Wynn that she did not have permission to use his
    name to cash checks, 
    id. at 149,
    and testified that “there is no reason . . . any
    reasonable person would ever suspect or believe that that cash was ever in the
    hands of Mr. Wynn[,]” 
    id. at 150.
    The government presented several exhibits of
    cashier’s checks made payable to accounts belonging to Ms. Ratliff, see 
    id. at 135-44,
    158, and Agent Dawson testified that “the funds ultimately came from
    -8-
    Jim Wynn, Incorporated[,]” 
    id. at 143.
    He said that at Latimer State Bank,
    Ms. Ratliff had cashed checks made payable to Jim Wynn, Inc. or another entity
    owned by Jim Wynn, using endorsements of her signature and/or the forged
    signature of Jim Wynn, and had used the money for her own purposes. 
    Id. at 144-145.
    Agent Dawson determined from talking to Jim Wynn that Mr. Wynn
    did not receive these funds, either. 
    Id. at 152.
    Agent Dawson testified that all of
    the checks mishandled at all three banks were cashed in a common scheme or plan
    over a common period of time, from 2003 into 2005. 
    Id. at 145.
    He said that the
    loss to Wilburton State Bank was $252,620.55, the loss to Latimer State Bank was
    $115,327.56, and the loss to The Bank, N.A., was $116,075.51, making a total
    loss of “approximately $484,000.00[,]” 
    id. at 159-60—and
    specifically
    $484,023.62.
    c. The Sentencing Factors
    As noted above, ultimately, Ms. Ratliff was not charged with embezzlement
    from Jim Wynn, Inc., but was charged only with one count of bank fraud based on
    the phony account she opened at The Bank, N.A. See 
    id. at 17,
    25. She stated at
    her change-of-plea hearing that, in August 2004, she “opened a bank account
    under Wynn’s Electronics that had [her] name and [her] social security number at
    McAlester, Oklahoma, The Bank N.A.” 
    Id. at 25.
    She admitted that her purpose
    in opening the bank account was to defraud her employer of money by depositing
    -9-
    his checks in that checking account. See 
    id. She also
    admitted that she intended
    to execute a scheme that defrauded the bank, and intended to obtain money by
    false or fraudulent pretenses. See 
    id. at 26.
    She also agreed that the
    government’s evidence would show that she
    represented to the bank that the interest in a particular business that
    the Wynns[] owned was being sold to [her], at which point in time
    there was a document prepared at which she forged the signature of
    Mrs. Wynn in order to establish that relationship, which in turn not
    only defrauds the Wynns, but it defrauds the bank because it’s a . . .
    misrepresentation to the bank.
    
    Id. at 26-27.
    She admitted that she executed that document with the intent to
    defraud. See 
    id. at 27.
    At the end of the second sentencing hearing, the district court pronounced
    Ms. Ratliff’s sentence. Overruling Ms. Ratliff’s objection, the court found by a
    preponderance of the evidence “that there was a common scheme or plan
    regarding the funds obtained from the checks fraudulently presented and/or
    converted at Wilburton State Bank and Latimer State Bank and . . . the funds
    associated with those checks [were] appropriately considered as relevant
    conduct.” 
    Id. at 180.
    Counsel for Ms. Ratliff argued that when she cashed checks
    at Wilburton State Bank and Latimer State Bank—which amounted to nearly
    $300,000—she gave the cash to Mr. Wynn. See 
    id. at 173-74.
    The court rejected
    her argument, and added fourteen points to the base offense level for the amount
    of loss. 
    Id. at 180.
    -10-
    Further, overruling Ms. Ratliff’s objection, the court also added two points
    for abuse of a position of trust under U.S.S.G. § 3B1.3, finding that Ms. Ratliff
    “was a trusted employee, given very little oversight.” 
    Id. at 181.
    The court noted
    that Mr. Wynn “described her position as office manager and added that while he
    and his wife were not present at the business, Ms. Ratliff had control of the
    same.” 
    Id. at 181-82.
    The court also noted that another employee, Rachel
    Sennet, stated at a deposition prepared for another case that Ms. Ratliff acted as
    supervisor for her and other employees when the Wynns were not present. 
    Id. at 182.
    The court found by a preponderance of the evidence that Ms. Ratliff’s
    “position facilitated her ability to carry out and conceal this scheme.” 
    Id. Again, overruling
    Ms. Ratliff’s objection, the court also added two points
    for the use of sophisticated means under U.S.S.G. § 2b1.1(b)(9). 
    Id. at 182-83.
    The court found that she “went to extraordinary lengths to carry out this
    offense[,] . . . creating a false bill of sale and establishing – and establishment of
    a bank account and under false pretenses.” 
    Id. at 183.
    The court also mentioned
    the government’s “documentation of various exhibits[,]” although the court did
    not describe them. See 
    id. The court
    found that the total offense level was 25 and the criminal
    category was I, resulting in an advisory sentencing range of 57 to 71 months. 
    Id. at 188.
    The court adopted the presentence report as the factual basis for the
    sentence, except where corrected by the court’s findings. 
    Id. As noted
    above, the
    -11-
    court sentenced Ms. Ratliff to sixty months’ imprisonment, thirty-six months of
    supervised release, a special assessment of $100.00, and restitution of
    $484,023.62. 
    Id. at 188-90.
    Ms. Ratliff appeals.
    II. Issues on Appeal
    Ms. Ratliff argues that the district court: (1) employed an incorrect
    definition of a “position of trust” and lacked a sufficient factual basis to support
    the application of the enhancement for abuse of a position of trust under
    U.S.S.G. § 3B1.3, because she was not an agent or employee of the victim of the
    bank fraud, The Bank, N.A., and lacked the requisite managerial discretion in her
    position with Jim Wynn, Inc.; (2) lacked a sufficient factual basis to support a
    two-point enhancement for use of sophisticated means under
    U.S.S.G. § 2B1.1(b)(9)(C) because her bank fraud scheme was not especially
    complex or intricate, as required by the commentary accompanying the Guideline;
    (3) improperly failed to find relevant conduct of embezzlement beyond a
    reasonable doubt instead of under the usual preponderance of the evidence
    standard when the court determined that the amount of loss and restitution was
    higher than the amount she had admitted, $116,430.84; (4) improperly determined
    the amount of loss and restitution because, under any evidentiary standard, it was
    error to include alleged criminal acts of embezzlement as relevant conduct to the
    -12-
    offense of bank fraud; and (5) improperly failed to subtract three points for
    acceptance of responsibility.
    III. Discussion
    a. Position of Trust Enhancement under U.S.S.G. § 3B1.3
    The district court imposed a two-point enhancement pursuant to
    U.S.S.G. § 3B1.3 for abuse of a position of trust. 1 “Whether a defendant
    occupied a position of trust under USSG § 3B1.3 is generally a factual matter that
    we review for clear error.” United States v. Spear, 
    491 F.3d 1150
    , 1153
    (10th Cir. 2007) (quotation omitted). Ms. Ratliff argues that the district court
    used the wrong definition for a position of trust, however, which is a legal
    question that we review de novo. 
    Id. She also
    argues that the position of trust
    enhancement does not apply because the position of trust must be in relation to
    the victim of the charged offense, which was The Bank, N.A., not Jim Wynn, Inc.
    We review this legal question de novo. See 
    id. She further
    asserts that the
    district court lacked a sufficient factual basis as a matter of law to support the
    application of the enhancement for abuse of a position of trust, which we also
    review de novo. United States v. Hamilton, 
    587 F.3d 1199
    , 1222 (10th Cir.
    2009). We reject Ms. Ratliff’s arguments.
    1
    U.S.S.G. § 3B1.3 provides, in pertinent part: “If the defendant abused a
    position of public or private trust, or used a special skill, in a manner that
    significantly facilitated the commission or concealment of the offense, increase
    [the offense level] by 2 levels.”
    -13-
    “To invoke § 3B1.3, the defendant must either occupy a formal position of
    trust or must create sufficient indicia that [s]he occupies such a position of trust
    that [s]he should be held accountable as if [s]he did occupy such a position.”
    United States v. Haber, 
    251 F.3d 881
    , 891 (10th Cir. 2001) (quotation omitted).
    In the fraud context, we have applied § 3B1.3 in two types of
    cases. The first is where the defendant steals from his employer,
    using his position in the company to facilitate the offense. See, e.g.,
    United States v. Levy, 
    992 F.2d 1081
    (10th Cir. 1993) (official of
    bankrupt company embezzled from company, defrauding trustee and
    company’s creditors); United States v. Chimal, 
    976 F.2d 608
          (10th Cir. 1992) (embezzlement by company comptroller). The
    second is where a “fiduciary or personal trust relationship exists”
    with other entities, and the defendant takes advantage of the
    relationship to perpetrate or conceal the offense. United States v.
    Brunson, 
    54 F.3d 673
    , 677 (10th Cir.), cert. denied, 
    516 U.S. 951
          (1995).
    United States v. Koehn, 
    74 F.3d 199
    , 201 (10th Cir. 1996).
    “Before imposing this enhancement, a district court must find two things:
    (1) the defendant possessed a position of trust; and (2) the defendant abused the
    position to significantly facilitate the commission or concealment of the offense.”
    United States v. Guidry, 
    199 F.3d 1150
    , 1159 (10th Cir. 1999) (citing United
    States v. Burt, 
    134 F.3d 997
    , 998-99 (10th Cir. 1998)). “However, to reach the
    second prong of Burt a district court must first find the defendant occupied a
    position of trust, and our case law clearly states the position of trust must be
    found in relation to the victim of the offense: The question of whether an
    -14-
    individual occupied a position of trust is evaluated from the victim’s perspective.”
    
    Id. at 1160
    (quotation omitted).
    The question of how narrowly or broadly the term “victim” should be
    defined is in dispute among the circuits. United States v. Edwards, 
    325 F.3d 1184
    , 1188 n.1 (10th Cir. 2003) (noting circuit split is discussed in 
    Guidry, 199 F.3d at 1160
    n.6). We affirm the district court’s conclusion that Mr. Wynn
    was a victim of Ms. Ratliff’s bank fraud, see R., Vol. 2, at 181, because his
    company, Jim Wynn, Inc., was the true owner of the checks she converted to her
    own use through that fraud. She relies upon Guidry, but that case is clearly
    distinguishable because the crime in that case was filing false income tax returns,
    and the government was necessarily the only victim of that crime. 
    See 199 F.3d at 1160
    . We move on to Ms. Ratliff’s other arguments.
    Ms. Ratliff asserts error on the first step of Burt, arguing that the
    imposition of the position of trust enhancement was legal error because she did
    not occupy a position of trust vis-a-vis either The Bank, N.A. or Jim Wynn, Inc.,
    under the correct definition of the term as applied to the facts elicited at
    sentencing. The district court made no explicit finding that Ms. Ratliff occupied
    a position of trust with regard to either The Bank, N.A. or Jim Wynn, Inc., but the
    court’s decision may be read to imply that the court viewed Ms. Ratliff to occupy
    a formal position of trust with respect to Jim Wynn, Inc. See R., Vol. 2,
    at 181-82.
    -15-
    In defining a position of public or private trust, the Guidelines’ Application
    Note 1 to § 3B1.3 provides that:
    “Public or private trust” refers to a position of public or private trust
    characterized by professional or managerial discretion (i.e.,
    substantial discretionary judgment that is ordinarily given
    considerable deference). Persons holding such positions ordinarily
    are subject to significantly less supervision than employees whose
    responsibilities are primarily non-discretionary in nature.
    
    Spear, 491 F.3d at 1153-54
    (quoting U.S.S.G. § 3B1.3, cmt. n.1) (emphasis in
    original). “The commentary goes on to illustrate the scope of the
    enhancement—it applies, for example, to professionals like lawyers or doctors,
    but not to bank tellers or hotel clerks.” 
    Spear, 491 F.3d at 1154
    .
    We have previously explained that “the term ‘position of trust’ is a bit of a
    misnomer” because this enhancement “has little to do with trustworthiness and
    everything to do with authority and discretion.” 
    Spear, 491 F.3d at 1154
    (discussing 
    Edwards, 325 F.3d at 1188
    ) (emphasis in original). A position of
    trust is “a position of authority characterized by the exercise of professional or
    managerial discretion[.]” 
    Id. We have
    held that “discretion” means, in general,
    that an employee was charged “with deciding, on a case-by-case basis, whether a
    particular expenditure or transfer of company funds or other valuables is
    necessary or beneficial to the organization.” 
    Edwards, 325 F.3d at 1188
    . Where
    a defendant, in her position as a buyer, was “authorized to purchase goods and
    services for [her employer] costing up to $100,000 without supervisory
    -16-
    approval[,]” we concluded that the district court correctly found that she was in a
    position of trust. See United States v. Arreola, 
    548 F.3d 1340
    , 1346-47 (10th Cir.
    2008). More generally, managerial discretion is shown by “authority to engage in
    case-by-case decision-making, to set policies, and to grant exceptions to
    governing policies or protocols.” 
    Spear, 491 F.3d at 1155
    . However, “[t]hese
    factors are non-exhaustive, and no one factor is dispositive of the analysis.” 
    Id. “‘The fact
    that [the defendant] was trusted by her employer with significant
    responsibility . . . is not determinative.’” 
    Id. at 1154
    (quoting 
    Edwards, 325 F.3d at 1187
    (alteration in original; emphasis added)). And “‘job titles themselves do
    not control; actual duties and authorized activities do.’” 
    Id. at 1157
    (quoting
    
    Edwards, 325 F.3d at 1187
    ). The fact that a defendant was given little
    supervision does not necessarily mean that her duties were not ultimately
    ministerial. See 
    id. at 1155.
    “The commentary for § 3B1.3 contemplates a
    continuum of discretion from bank teller to professional[, and s]omewhere along
    the continuum an employee moves from ministerial to discretionary in the
    performance of job duties.” 
    Spear, 491 F.3d at 1157
    . To reach a conclusion, the
    court “must undertake a functional analysis of job responsibilities” to determine
    whether those duties were actually managerial rather than merely ministerial. 
    Id. at 1155.
    We have emphasized “that the lack of ‘any [ ] authority to make substantial
    discretionary judgments’ is key in determining whether the enhancement applies.”
    -17-
    
    Id. at 1154
    (quoting 
    Edwards, 325 F.3d at 1187
    (holding that employee in
    accounting department was not in position of trust)). And the fact that “company
    officials trusted [her], and that her position gave her access to customers’ checks
    and important company records” is not enough if the evidence does not support
    the conclusion that she had authority to make substantial discretionary judgments.
    See 
    Edwards, 325 F.3d at 1187
    . This is so because “[o]pportunity and access do
    not equate to authority, or to the kind of ‘substantial discretionary judgment that
    is ordinarily given considerable deference.’” 
    Id. (quoting U.S.S.G.
    § 3B1.3, cmt.
    n.1). If “the facts show no more than that [defendant’s] job was responsible but
    ministerial[,]” they will not meet the “higher level” bar set by Application Note 1.
    See 
    id. at 1188.
    The district court relied on the fact that Mr. Wynn said her title
    was “office manager[,]” 
    id. at 181,
    and a former coworker said she was a
    “supervisor[,]” 
    id. at 182.
    The court also relied on the fact that Ms. Ratliff was “a
    trusted employee, given very little oversight[,]” 
    id. at 181,
    and said that when the
    Wynns were not present, she had “control” of the business, 
    id. at 181-82.
    Additionally, Mr. Wynn’s testimony indicated he believed Ms. Ratliff’s
    duties entailed a managerial level of discretion. This belief is manifest in the fact
    he left her in charge of the operation of the business during his long absences.
    Also, when Mr. Wynn was notified by a vice president of the Latimer State Bank
    that Ms. Ratliff wanted cash for a check payable to Jim Wynn Incorporated, he
    -18-
    authorized the transaction. He did so and did not challenge her even though he
    could not understand why Ms. Ratliff wanted to make the transaction.
    A more precise questioning of Mr. Wynn could have produced more
    specific answers from Mr. Wynn about the full nature of Ms. Ratliff’s
    employment, but we do not believe that to be consequential. When all the
    evidence on point is taken together, as it must be, we believe it is sufficient to
    establish Ms. Ratliff held a position of trust as governed by U.S.S.G. § 3B1.3.
    b. Sophisticated Means Enhancement under U.S.S.G. § 2B1.1(b)(9)(C)
    The district court added two points for the use of sophisticated means under
    U.S.S.G. § 2B1.1(b)(9)(C). “When reviewing a district court’s application of the
    Sentencing Guidelines, we review legal questions de novo and we review any
    factual findings for clear error, giving due deference to the district court’s
    application of the guidelines to the facts.” United States v. Jones, 
    530 F.3d 1292
    ,
    1305 (10th Cir.) (quotation omitted), cert. denied, 
    129 S. Ct. 583
    (2008). As in
    Jones, “[h]ere, Ms. [Ratliff has] not contested findings of fact or the district
    court’s interpretation of the Guidelines; [she] contest[s] only the district court’s
    application of the Guidelines to the facts.” 
    Id. Accordingly, “we
    will review the
    district court’s decision deferentially rather than de novo.” 
    Id. We reject
    Ms. Ratliff’s argument that her challenge to the court’s application of the
    -19-
    sophisticated means enhancement on the facts of this case presents a question of
    law that we should review de novo.
    Section 2B1.1(b)(9) provides that a sentencing court must assess a
    two-level increase in the offense level of a defendant
    [i]f (A) the defendant relocated, or participated in relocating, a
    fraudulent scheme to another jurisdiction to evade law enforcement
    or regulatory officials; (B) a substantial part of the fraudulent scheme
    was committed from outside the United States; or (C) the offense
    otherwise involved sophisticated means . . . .
    
    Jones, 530 F.3d at 1305
    (quoting U.S.S.G. § 2B1.1(b)(9)) (alteration in original).
    We have noted that “[t]he accompanying commentary explains that ‘sophisticated
    means’ refers to an ‘especially complex or especially intricate offense conduct
    pertaining to the execution or concealment of an offense.’” 
    Id. (citing U.S.S.G.
    § 2B1.1(b)(9) cmt. n.8(B)) (emphasis added). And we have also noted
    that the commentary “that interprets or explains a guideline is authoritative unless
    it violates the Constitution or a federal statute, or is inconsistent with, or a plainly
    erroneous reading, of that guideline.” 
    Id. (quotation omitted).
    The district court based the sophisticated means enhancement under
    § 2B1.1(b)(9)(C) on the admitted facts that Ms. Ratliff forged a bill of sale
    showing that she owned Wynn’s Electronics and then established an account in
    her name at The Bank, N.A. under those false pretenses. See R., Vol. 2, at 183.
    Ms. Ratliff argues that opening a phony bank account is not especially complex or
    intricate and does not satisfy the meaning of the Guideline applied in this case.
    -20-
    We acknowledged in Jones that the commentary to the Guideline requires
    that a “sophisticated” scheme be “especially” complex or “especially” 
    intricate. 530 F.3d at 1305-06
    . Nevertheless, we upheld the application of the sophisticated
    means enhancement under the facts of that case. See 
    id. Ms. Ratliff
    argues that
    this case falls instead within the facts of United States v. Rice, 
    52 F.3d 843
    ,
    849-50 (10th Cir. 1995), which involved a different sophisticated means
    Guideline, and where we did not uphold the application of that enhancement.
    We believe that the facts of this case fall between those in Rice and Jones.
    Rice was a tax case where the defendant “merely claimed to have paid
    withholding taxes he did not 
    pay.” 52 F.3d at 849
    . In this case, by way of
    contrast, Ms. Ratliff told lies to The Bank, N.A. and, to sell her lies, forged both a
    bill of sale and also a second document purporting to show Mrs. Wynn conveying
    a particular company check to Ms. Ratliff.
    Jones is also distinguishable on the facts—in addition to creating fraudulent
    checks on their home computers, those defendants also recruited a “sizeable
    group” of accomplices to provide them with confidential, non-public bank
    account 
    information. 530 F.3d at 1305-06
    . In this case, however, although there
    was evidence that other employees also mishandled a few checks, there was no
    evidence that Ms. Ratliff enlisted any accomplices in her scheme.
    The government asserts that Ms. Ratliff manipulated the company’s
    financial records to conceal her fraud. Aplee. Br. at 38. The evidence cited,
    -21-
    however, indicates only that Ms. Ratliff exploited a vulnerability in the audit
    process—Mr. Wynn testified that a normal audit does not correlate deposits to
    income and that experts told him that a normal audit would not have caught
    Ms. Ratliff’s fraud. R., Vol. 2, at 88-89. Nevertheless, Mr. Wynn testified that
    Ms. Ratliff recorded the mishandled checks “paid written in hand, . . . but it was
    never, quote, rung up or run through the point-of-sale computer that would have
    showed [sic] it for the sales that day.” 
    Id. at 50.
    This evidence shows that failing
    to enter some checks into the computer was part of Ms. Ratliff’s overall scheme
    to deposit most checks correctly by stamping them for deposit with the company’s
    stamp, but to then misdirect/mishandle one check out of a stack by handwriting an
    endorsement and presenting it for cash at one of the company’s banks in
    Wilburton or depositing it into her phony company account at The Bank, N.A. in
    McAlester, making the fraud difficult to detect. See 
    id. at 89-90.
    The sophisticated means enhancement applies if the overall scheme was
    sophisticated, even if the individual acts were not. 
    Jones, 530 F.3d at 1306
    . In
    Jones, we noted in particular the Fifth Circuit’s decision in United States v.
    Wright, 
    496 F.3d 371
    , 377-79 (5th Cir. 2007). We called the scheme in Wright
    “less complex than the one at issue.” 
    Jones, 530 F.3d at 1306
    . We pointed out
    that in Wright, “the defendant, a mortgage broker, misrepresented the net worth of
    some of his clients to potential lenders. He did so by purchasing cashier’s checks
    in the names of his clients and forwarding copies of the checks to the lenders,
    -22-
    thereby giving the impression that the checks were the borrowers’ assets.” 
    Jones, 530 F.3d at 1306
    . Those facts strike us as very similar to Ms. Ratliff’s scheme.
    Giving due deference to the district court’s decision, we conclude that the court
    did not err in applying the sophisticated means enhancement to Ms. Ratliff.
    c. Relevant Conduct—Legal Standard
    The district court determined that the government proved by a
    preponderance of the evidence that Ms. Ratliff was accountable for losses at all
    three banks where Wynn Electronics’ checks were mishandled and ordered her to
    make restitution in the amount of $484,023.62. R., Vol. 2, at 184, 189. However,
    the amount she admitted she fraudulently converted to her own use through her
    phony account at The Bank, N.A. in McAlester was only $116,430.84. See R.,
    Vol. 1, at 11-12; 
    id., Vol. 2,
    at 19.
    Ms. Ratliff argues that the district court should not have included losses
    due to embezzlement separate from the bank fraud as relevant conduct unless
    those losses were proved beyond a reasonable doubt. She maintains that because
    she was unwilling to plead guilty to embezzlement, and the government did not
    include the count charging embezzlement in the information, the court unfairly
    increased her sentence by including losses due to embezzlement based on proof
    by a preponderance of the evidence.
    -23-
    “We review de novo any legal questions underlying the district court's
    application of the Guidelines.” United States v. Griffith, 
    584 F.3d 1004
    , 1011
    (10th Cir. 2009). Ms. Ratliff acknowledges that we have held that “[b]oth before
    and under the Guidelines, facts relevant to sentencing have generally been found
    by a preponderance of the evidence.” United States v. Magallanez, 
    408 F.3d 672
    ,
    684 (2005) (citing United States v. Watts, 
    519 U.S. 148
    , 156 (1997)). Indeed, the
    Supreme Court has held that “[a] jury verdict of acquittal on related conduct . . .
    ‘does not prevent the sentencing court from considering conduct underlying the
    acquitted charge, so long as that conduct has been proved by a preponderance of
    the evidence.’” 
    Id. (quoting Watts
    , 519 U.S. at 157) (emphasis added).
    Nevertheless, Ms. Ratliff asks us to reconsider our holding in Magallanez based
    on the reasoning of some of the other circuits that a higher standard of proof may
    be necessary to satisfy due process where “a sentence enhancement factor
    becomes the ‘tail which wags the dog of the substantive offense.’” Aplt. Opening
    Br. at 53 (quoting United States v. Townley, 
    929 F.2d 365
    , 369 (8th Cir. 1991)
    (quoting McMillan v. Pennsylvania, 
    477 U.S. 79
    , 88 (1986))).
    There are two problems with Ms. Ratliff’s argument. First, in McMillan,
    the Supreme Court rejected the argument that “if a State wants to punish visible
    possession of a firearm [in a defendant’s sentence] it must undertake the burden
    of proving that fact beyond a reasonable doubt.” 
    See 477 U.S. at 84
    (emphasis
    added). The Court also rejected an argument that due process requires that a fact
    -24-
    treated “as a sentencing consideration rather than an element of a particular
    offense” must “be proved by at least clear and convincing evidence” rather than
    by a preponderance of the evidence. 
    Id. at 91.
    The Court pointed out that
    “[s]entencing courts have traditionally heard evidence and found facts without
    any prescribed burden of proof at all.” 
    Id. Second, we
    are foreclosed by our own
    prior holding in Magallanez that sentencing factors are generally proved by a
    preponderance of the 
    evidence. 408 F.3d at 684
    . “[W]e are bound by the
    precedent of prior panels absent en banc reconsideration or a superseding contrary
    decision by the Supreme Court.” United States v. Albert, 
    579 F.3d 1188
    , 1197
    n.11 (10th Cir. 2009) (quotation omitted). The district court correctly found
    relevant conduct by a preponderance of the evidence.
    d. Relevant Conduct—Determination of Losses to Include in Restitution
    Ms. Ratliff argues in the alternative that the district court erred in setting
    the amount of restitution at $484,023.62 because, under any evidentiary standard,
    it was error to include alleged criminal acts of embezzlement as relevant conduct
    to the admitted offense of bank fraud. We disagree.
    “While we review for clear error the district court’s factual findings in
    support of a determination of relevant conduct, we review the ultimate
    determination of relevant conduct de novo.” 
    Griffith, 584 F.3d at 1012-13
    (quotation omitted). “Relevant conduct under the Guidelines . . . comprises more,
    -25-
    often much more, than the offense of conviction itself, and may include
    uncharged and even acquitted conduct.” 
    Id. at 1012
    (quotations omitted). We
    have held “that for a district court to consider a defendant’s conduct as ‘relevant’
    under the Sentencing Guidelines, the Government must prove by a preponderance
    of the evidence that the defendant (1) engaged in conduct (2) related to the
    offense of conviction pursuant to U.S.S.G. § 1B1.3 and (3) constituting a criminal
    offense under either a federal or a state statute.” 
    Griffith, 584 F.3d at 1013
    .
    “The Sentencing Guidelines provide that the court should take into account
    all activities that form part of the ‘same course of conduct or common scheme or
    plan as the offense of conviction,’ U.S.S.G. § 1B1.3(a)(2), even if the defendant
    was never charged with that additional conduct and the jury never found h[er]
    guilty of it.” United States v. Caldwell, 
    585 F.3d 1347
    , 1350 (10th Cir. 2009).
    “The Guidelines commentary . . . explains that
    For two or more offenses to constitute part of a common scheme or
    plan, they must be substantially connected to each other by at least
    one common factor, such as common victims, common accomplices,
    common purpose, or similar modus operandi. . . .
    . . . . Offenses that do not qualify as part of a common scheme or
    plan may nonetheless qualify as part of the same course of conduct if
    they are sufficiently connected or related to each other as to warrant
    the conclusion that they are part of a single episode, spree, or
    ongoing series of offenses.
    
    Griffith, 584 F.3d at 1012
    (quoting U.S.S.G. § 1B1.3 cmt. n.9(B)). “We have
    interpreted this language to mean that if the conduct is sufficiently similar and
    -26-
    within the same temporal proximity, it may be considered relevant for purposes of
    determining the guideline range.” 
    Id. (quotations omitted).
    We have thoroughly reviewed the evidence. Special Agent Dawson
    testified that all of the checks Ms. Ratliff mishandled at all three banks were
    cashed in a common scheme or plan over a common period of time, from 2003
    into 2005. R., Vol. 2, at 145. We conclude that the district court properly
    rejected Ms. Ratliff’s argument that she cashed nearly $300,000 in checks and
    took the money back to Mr. Wynn (despite his testimony that she did not), and
    affirm the court’s inclusion of all of the mishandled checks attributable to
    Ms. Ratliff as relevant conduct.
    e. Acceptance of Responsibility
    Ms. Ratliff argues that the district court erred by failing to subtract three
    points for acceptance of responsibility because she accepted responsibility for the
    bank fraud that was the sole charge of the information. We reject this argument.
    “The district court’s acceptance of responsibility determination is subject to
    the clearly erroneous standard of review.” United States v. Quarrell, 
    310 F.3d 664
    , 682 (10th Cir. 2002). “Because the ‘sentencing judge is in a unique position
    to evaluate a defendant’s acceptance of responsibility,’ his or her decision is
    ‘entitled to great deference on review.’” 
    Id. (quoting U.S.S.G.
    § 3E1.1, cmt. n.5
    (2001)). “The burden of proving acceptance of responsibility is on the defendant,
    -27-
    who must establish by a preponderance of the evidence a recognition and
    affirmative acceptance of personal responsibility for h[er] criminal conduct.” 
    Id. (quotation omitted).
    “Among the considerations used in determining whether a
    defendant should receive the acceptance of responsibility adjustment are whether
    the defendant admitted to the elements of the crimes and whether the defendant
    admitted to, or at least did not falsely deny, any other relevant conduct.” 
    Id. (citing §
    3E1.1, cmt. n.1(a)) (emphasis added). “If a defendant denies relevant
    conduct and the court determines such conduct occurred, the defendant cannot
    claim to have accepted responsibility for h[er] actions.” United States v. Brown,
    
    47 F.3d 198
    , 204 (10th Cir. 1995).
    The district court found “by a preponderance of the evidence that the
    Defendant’s actions are inconsistent with an affirmative acceptance of
    responsibility. Not only does the Defendant maintain that she only committed
    fraud based on ten checks [taken to The Bank, N.A. in McAlester], she now
    implies that her employer was somehow involved in her fraudulent activities.
    Since the Defendant has falsely denied or frivolously contested relevant conduct
    found by this court, she should not receive points for acceptance of
    responsibility.” R., Vol. 2, at 186. We have concluded that the court did not err
    in determining the extent of relevant conduct, and we also agree with the court’s
    finding that Ms. Ratliff refused to accept the responsibility for the full extent of
    -28-
    her criminal conduct. We conclude that the court properly determined that
    Ms. Ratliff was not entitled to a reduction for acceptance of responsibility.
    IV. Conclusion
    The judgment of the district court is AFFIRMED.
    ENTERED FOR THE COURT
    PER CURIAM
    -29-
    United States v. Ratliff
    PORFILIO, J., dissenting.
    I respectfully dissent.
    Although I agree with most of the court’s analysis of the issues of this case,
    I have reservations about the sufficiency of the evidence to support the district
    court’s conclusion Ms. Ratliff held a “position of trust.” I believe, as the
    majority notes, our caselaw requires that a person in a position of trust within a
    commercial setting be more than trustworthy. Here, to have a position of trust,
    Ms. Ratliff had to have been in a managerial rather than a ministerial position.
    Although Mr. Wynn testified Ms. Ratliff was “trusted” and needed “very little
    oversight,” the actual substance of her duties is unclear. Indeed, I believe
    Mr. Wynn’s testimony on that subject was internally conflicting.
    The prosecutor framed his questions to Mr. Wynn in terms of the trust and
    responsibility he gave Ms. Ratliff, and Mr. Wynn answered in kind. As a result,
    the evidence elicited during the sentencing hearings failed to show the details of
    the discretion and authority Ms. Ratliff had in her position with Jim Wynn, Inc.
    What did she do on a regular basis to distinguish her as the leader of other
    employees, either when the Wynns were present to supervise her, or when they
    were not? Consequently, as distasteful as it may seem, I believe this case should
    be remanded for a fuller exploration of what Ms. Ratliff actually did that would
    show she had managerial authority.