United States v. Tonyal Loud ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12438
Non-Argument Calendar
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D.C. Docket No. 7:16-cr-00007-HL-TQL-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONYAL LOUD,
Defendant-Appellant.
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No. 17-12480
Non-Argument Calendar
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D.C. Docket No. 7:16-cr-00007-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
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versus
CASEITA JENKINS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Georgia
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(September 19, 2018)
Before ED CARNES, Chief Judge, TJOFLAT, and NEWSOM, Circuit Judges.
PER CURIAM:
Tonyal Loud and Caseita Jenkins participated in a conspiracy that involved
cashing fraudulently obtained United States Treasury checks at a Walmart store in
Georgia. The gist of the scheme was that some of the conspirators would go to the
store with fraudulently obtained Treasury checks, and other conspirators who
worked there would cash those checks. Loud was a customer service manager at
the store. Doris Buie, Oceana Pace, and Vanesha Thompson were cashiers there.
Jenkins and her sister, Jennifer Wilson, brought checks to the store to cash. All six
conspirators pleaded guilty to one count of conspiracy to defraud the United States,
in violation of 18 U.S.C. §§ 371, 641.
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I.
Loud and Jenkins challenge their sentences. 1 Loud contends that the district
court erred by enhancing her base offense level by 10 based on its finding that she
was responsible for Walmart’s loss of $206,108.86, the total amount of loss that
the check-cashing scheme caused. 2 She also challenges the four-level aggravating
role enhancement to her base offense level based on the district court’s finding that
she was an organizer or leader of the criminal activity, and the two-level
enhancement based on its finding that she abused a position of trust. Finally, she
contends that her 30-month sentence, which is at the bottom of her guidelines
range, is procedurally and substantively unreasonable.
Like Loud, Jenkins contends that she should not have been subjected to a
ten-level enhancement to her base offense level because she is not responsible for
the total loss amount. She also contends that her 37-month sentence, which is at
the top of her guidelines range, is procedurally and substantively unreasonable.
II.
Law enforcement officers began investigating the check-cashing scheme in
early 2012. In late February, they observed Jenkins meeting a group of people at a
1
Loud and Jenkins’ four co-conspirators are not parties to this appeal.
2
Walmart is the victim because it was on the hook for the total loss amount due to a
financial recovery procedure known as check reclamation. That is a procedure that the United
States Treasury Department uses to obtain a refund (reclamation) from institutions that pay
Treasury checks over forged or unauthorized endorsements. See 31 U.S.C. § 3712.
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convenience store and then heading to a Walmart store. The video cameras at
Walmart showed that Jenkins provided four fraudulently obtained checks to
cashier co-conspirators Pace and Thompson. Two weeks later, officers
interviewed Pace, and the scheme unraveled.
A.
Loud pleaded guilty under a written plea agreement, which included a
factual stipulation. 3 In her plea agreement she swore that she cashed about 20
fraudulently obtained checks for Jenkins in exchange for $75 to $100 per check.
Loud also swore that Buie, Pace, and Thompson cashed fraudulently obtained
checks for Jenkins.
Although Jenkins also pleaded guilty, she did not, unlike her co-
conspirators, enter a written plea agreement with the government. At her plea
colloquy, Jenkins answered questions under oath. Jenkins said that her role in the
conspiracy was limited to providing the four checks to Pace and Thompson in late
February. But the district court asked her whether she was “pleading guilty
because you are, in fact, guilty.” She replied “yes.” The district court also asked
her whether she “did, in fact, commit the offense charged,” and she admitted that
she did.
3
Loud’s plea agreement also included an appeal waiver, but the government has chosen
not to rely on it.
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B.
Loud’s and Jenkins’ presentence investigation reports recommended a base
offense level of 6 and added 10 levels because of the $206,108.86 loss amount.
See United States Sentencing Guidelines § 2B1.1(b)(1)(F) (Nov. 2016). The PSRs
also added four levels because Loud and Jenkins were organizers or leaders of the
check-cashing scheme and the scheme involved at least five participants. See id.
§ 3B1.1(a). In addition, Loud’s PSR added two levels because she abused a
position of trust –– her position as a Walmart customer service manager — in a
manner that significantly facilitated the commission of the scheme. See id.
§ 3B1.3. Loud’s total offense level was 19, and her criminal history category of I
yielded a guidelines range of 30 to 37 months in prison. Jenkins’ total offense
level was 17, and her criminal history category of V yielded a guidelines range of
46 to 57 months in prison. The statutory maximum was 60 months. 18 U.S.C.
§ 371.
C.
At the sentence hearing the government presented testimonial and
documentary evidence that the district court found persuasive. The government
first called Secret Service Agent Clint Bush to testify about his investigation into
the check-cashing scheme. He testified that he witnessed the February 2012
meeting that led to Jenkins cashing fraudulently obtained checks with Pace and
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Thompson at Walmart, conduct that was captured on video. He recounted that
Loud, working as a customer service manager at Walmart, recruited Buie, Pace,
and Thompson to participate in the scheme.
According to Agent Bush’s testimony, Loud had admitted cashing about 50
fraudulently obtained Treasury checks, and she stated that about 20 of those were
for Jenkins. Bush recounted how Pace had admitted that Jenkins and Wilson
brought in to Walmart up to 15 checks to cash. Bush created a spreadsheet
containing information related to each of the reclamations that Walmart suffered
because of the fraudulently obtained checks that the co-conspirators cashed there.
The spreadsheet included the total loss amount of $206,108.86, the name of the
Walmart cashier who cashed each fraudulently obtained check, the name of the
intended payee, and the check’s amount, its number, and its date. According to
Bush, Loud had approved some of the checks identified in the spreadsheet under a
store policy requiring customer service managers to approve the cashing of checks
over a certain dollar amount. The government introduced Loud’s written plea
agreement.
The government also called Pace as a witness. She testified that Jenkins’
role in the scheme was to deliver the checks to Walmart for cashing and that
Jenkins had brought in up to ten checks for that purpose. Pace also testified that
Loud had recruited her to join the scheme.
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The district court then heard Loud’s and Jenkins’ objections to the PSR.
Loud argued that she was responsible for the loss amount of only $134,954.87, the
total value of the checks she personally cashed. She also argued that she was
subject to neither an aggravating role enhancement nor an enhancement for
abusing a position of trust. Jenkins argued that she was responsible only for the
loss amount of the 4 checks that she provided in February 2012 ($13,769), and that
she was not subject to an aggravating role enhancement.
The district court overruled all of Loud’s and Jenkins’ objections with one
exception. It sustained Jenkins’ objection as to the aggravating role enhancement,
and, as a result, reduced her advisory guidelines range of 46 to 57 months in prison
to 30 to 37. The outcome was a sentence of 30 months in prison for Loud and a
sentence of 37 months in prison for Jenkins.
III.
Loud and Jenkins both contend that the district court erred by enhancing
their offense levels by 10 after attributing to each of them the $206,108.86 loss
amount of the check-cashing scheme. See U.S.S.G. § 2B1.1(b)(1)(F) (providing
for a 10-level enhancement when the total loss amount is more than $150,000 but
less than $250,000). We review for clear error a district court’s determination of
loss. United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011).
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Under the guidelines a district court may find a defendant “responsible for
the reasonably foreseeable acts of his co-conspirators in furtherance of the
conspiracy.” United States v. Baldwin, 774 F.3d 711, 727 (11th Cir. 2014); see
also U.S.S.G. § 1B1.3(a)(1)(B). To do so, a district court must first determine the
scope of the defendant’s criminal activity by making individualized findings, and
then determine reasonable foreseeability. See United States v. Hunter, 323 F.3d
1314, 1319 (11th Cir. 2003). A district court may make that first determination by
considering “any explicit agreement or implicit agreement fairly inferred from the
conduct of the defendant and others.” United States v. Petrie, 302 F.3d 1280, 1290
(11th Cir. 2002). But a district court’s failure to make individualized findings as to
the scope of a defendant’s criminal activity does not require vacating the sentence
“if the record support[s] the court’s determination.” Id.
The district court did not clearly err by attributing the $206,108.86 loss
amount to Loud and Jenkins. Even if the district court failed to make
individualized findings, the record supports its loss amount calculation as to each
of them.
First, there is the evidence about Loud. She swore in her written plea
agreement that she received $75 to $100 for each of the approximately 20
fraudulently obtained checks she cashed for Jenkins. At the sentence hearing
Agent Bush confirmed that the government’s spreadsheet showed that Loud and
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several of her co-conspirators cashed numerous fraudulently obtained checks,
resulting in a total loss amount of $206,108.86. Bush also recounted various
statements by the co-conspirators to law enforcement officers describing how Loud
had recruited several of her co-conspirators to participate in the scheme. He also
testified that Loud stated that she had cashed about 50 fraudulently obtained
checks. And Pace testified that Loud recruited her. The district court did not err in
holding Loud responsible for the total loss amount of $206,108.86.
Same with Jenkins. At Jenkins’ plea colloquy she confirmed that she was
guilty of participating in the conspiracy. In Loud’s written plea agreement she
admitted that Jenkins provided her with about 20 fraudulently obtained checks,
which she cashed. She also recounted that Buie, Pace, and Thompson cashed
fraudulently obtained checks for Jenkins. At the sentence proceeding Agent Bush
explained that he observed Jenkins cashing fraudulently obtained checks at
Walmart and recounted Pace’s statement that Jenkins and Wilson brought in to
Walmart up to 15 checks to cash. And there was also Pace’s testimony that
Jenkins delivered checks to some of the other co-conspirators. The record shows
that Jenkins agreed to, and did, fully participate in the scheme. The district court
did not err in finding that Jenkins was responsible for the total loss amount of
$206,108.86.
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In short, the evidence in the record supports the district court’s loss amount
calculation as to both Loud and Jenkins. The court did not err in applying a ten-
level enhancement. 4
IV.
Loud also challenges the four-level enhancement to her base offense level
based on the district court’s finding that she was an organizer or leader of the
check-cashing scheme. And the two-level enhancement based on the district
court’s finding that she abused a position of trust.
A.
Loud contends that the district court erred by finding her an organizer or
leader of the check-cashing scheme under § 3B1.1(a). She argues that she was a
mere middleman. Under § 3B1.1(a), a four-level enhancement is warranted “[i]f
the defendant was an organizer or leader of criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). To make that
determination, a sentencing court considers, among other things, the “exercise of
decision-making authority,” the “nature of participation in the commission of the
offense,” and “the recruitment of accomplices.” United States v. Vallejo, 297 F.3d
1154, 1169 (11th Cir. 2002) (citing U.S.S.G. § 3B1.1 cmt. n.4). Not every factor
4
In light of all of that evidence, we also reject Loud and Jenkins’ argument that the
government failed to present, by a preponderance of the evidence, reliable and specific evidence
linking each of them to the loss amount. See United States v. Cobb, 842 F.3d 1213, 1218–21
(11th Cir. 2016).
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must be present, and we give deference to the district court’s decision to apply
§ 3B1.1(a). See United States v. Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005).
The district court’s finding that Loud acted as an organizer or leader of the
check-cashing scheme was not clearly erroneous. The government introduced
evidence at the sentence hearing that Loud: (1) recruited Buie, Pace, and
Thompson to join the conspiracy; (2) paid Buie, Pace, and Thompson for cashing
fraudulently obtained checks; (3) used her position as a Walmart customer service
manager to approve the cashing of fraudulently obtained checks; and (4) personally
cashed $134,954.87 worth of fraudulently obtained checks. That’s a lot more than
merely arranging for others who were already cashing fraudulently obtained
checks to keep doing so, which is how Loud characterizes her role.
B.
Loud also contends that the district court erred by finding that she abused a
position of trust under § 3B1.3.5 Section 3B1.3 provides for a two-level
enhancement “[i]f the defendant abused a position of public or private trust . . . in a
manner that significantly facilitated the commission or concealment of the
offense.” U.S.S.G. § 3B1.3. The guidelines explain that a position of public or
5
We reject Loud’s argument that the district court used double counting to enhance her
sentence. A district court may impose both an aggravating role enhancement under § 3B1.1(a)
and an abuse of trust enhancement under § 3B1.3 when, as here, the abuse of trust enhancement
is not “based solely on the use of a special skill.” See United States v. Bracciale, 374 F.3d 998,
1009 (11th Cir. 2004); U.S.S.G. § 3B1.3.
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private trust is “characterized by professional or managerial discretion,” and that
“[p]ersons holding such positions ordinarily are subject to significantly less
supervision than employees whose responsibilities are primarily non-discretionary
in nature.” Id. cmt. n.1.
The district court did not clearly err in finding that Loud abused a position of
trust. The record shows that she abused her role as a Walmart customer service
manager in a manner that significantly facilitated the commission of the check-
cashing scheme. In that role Loud was entrusted with and exercised managerial
discretion, such as giving her approval to cash checks over a certain dollar amount
under Walmart’s policy. So Loud not only had “an advantage in committing the
crime because of” her position of trust, but also “use[d] that advantage in order to
commit the crime.” See United States v. Barakat, 130 F.3d 1448, 1455 (11th Cir.
1997).
V.
Loud and Jenkins next contend that their sentences are substantively
unreasonable. We review for abuse of discretion the substantive reasonableness of
a district court’s sentence. United States v. Irey, 612 F.3d 1160, 1165 (11th Cir.
2010) (en banc). The 18 U.S.C. § 3553(a) factors guide our review. United States
v. White, 663 F.3d 1207, 1217 (11th Cir. 2011). Those factors include, among
others, the nature and circumstances of the offense, the history and characteristics
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of the defendant, and the need to avoid unwarranted sentence disparities among
similarly situated defendants. 18 U.S.C. § 3553(a). The sentence a district court
imposes must be “sufficient, but not greater than necessary, to comply with the
purposes” of § 3553(a), including “the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment of the offense, deter
criminal conduct, protect the public from the defendant’s future criminal conduct,
and provide the defendant with needed educational or vocational training or
medical care.” Id. § 3553(a)(2).
Loud and Jenkins have not shown that their sentences are substantively
unreasonable. To begin with, Loud’s 30-month sentence and Jenkins’ 37-month
sentence are within the guidelines range and well below the 60-month statutory
maximum sentence. See United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005) (explaining that a sentence within the guidelines range is ordinarily expected
to be reasonable). And while Loud and Jenkins argue that the district court
improperly weighed the § 3553(a) factors, whether the district court should have
attached more weight to one factor over another was “a matter committed to [its]
sound discretion.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.
2008). Its sentences as to both Loud and Jenkins, which it arrived at after
considering both of their objections, fall far short of leaving us “with the definite
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and firm conviction that [it] committed a clear error of judgment in weighing the
§ 3553(a) factors.” White, 663 F.3d at 1217.6
AFFIRMED.
6
Loud and Jenkins also contend that their sentences are procedurally unreasonable
because the district court found each of them responsible for the total loss amount of the check-
cashing scheme. That is a rehash of their arguments about the loss amount calculation, which we
have already rejected.
Loud puts forward the added contention that her sentence is procedurally unreasonable
because the district court did not adequately consider the § 3553(a) factors. But the district
court’s acknowledgement that it did consider those factors is enough in itself to dispose of that
contention. See United States v. McGarity, 669 F.3d 1218, 1263 (11th Cir. 2012).
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