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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13507
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUINCETTA YVONNE CARGILL,
a.k.a. Queen,
a.k.a. Tonya,
a.k.a. Angela Scott,
a.k.a. Antela Scott,
a.k.a. Quincet Tucker,
a.k.a. Quincetta Tucker,
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2 Opinion of the Court 20-13507
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:17-cr-00356-RDP-JHE-1
____________________
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Quincetta Cargill appeals her convictions following a
bench trial for conspiracy to commit mail and wire fraud and
attempted witness tampering. She argues on appeal that (1) the
district court erred in permitting her to proceed pro se at the
bench trial because her waiver of her constitutional right to
counsel was not knowing and voluntary; (2) the district court
erred in denying her motion for judgment of acquittal on the
attempted witness tampering charge because the evidence was
insufficient to sustain a conviction; and (3) the district court erred
in attributing the total loss amount to Cargill when calculating
her base offense level under the Sentencing Guidelines. After
review, we affirm.
I. Background
In 2017, a federal grand jury indicted Cargill and several co-
conspirators on one count of conspiracy to commit mail and wire
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20-13507 Opinion of the Court 3
fraud based on the group’s filing of fraudulent income tax returns
and receipt of tax refunds to which they were not entitled. The
district court appointed counsel to represent Cargill.
Approximately nine months later, Cargill filed a pro se motion
requesting that alternative counsel be appointed, citing various
conflicts she had with her present counsel. A magistrate judge
held a hearing on the motion and denied it without prejudice.
However, a few months later, counsel filed a motion to
withdraw, stating that he went to the jail to meet Cargill and she
refused to meet with him. Cargill filed a simultaneous motion
again requesting that new counsel be appointed to her case, citing
her frustration with present counsel’s representation and with the
fact that whenever she filed pro se documents with the court,
those documents were stricken. 1 Following a hearing on the
motions, the magistrate judge granted the motion to withdraw,
and appointed new counsel.
A few months later, Cargill again filed a pro se motion
complaining of her second counsel’s representation, but shortly
thereafter filed a letter stating she had met with counsel, was
satisfied with counsel’s services, and was withdrawing her
motion. The government then notified the district court of a
potential conflict of interest concerning counsel’s representation
1
The record reflects that throughout the district court proceedings, Cargill
continued to file pro se documents when represented by counsel, despite the
court’s repeated admonition that because she was represented by counsel,
her pro se filings would not be considered.
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4 Opinion of the Court 20-13507
of Cargill,2 and Cargill filed a pro se letter opposing counsel’s
continued representation of her. After a lengthy colloquy with
Cargill at the hearing on this matter, the district court explained
that, although it did not believe there was a conflict of interest, in
light of Cargill’s concerns and insistence that she receive new
counsel, it removed second counsel and appointed new counsel
for a third time.
Cargill continued to file pro se documents however, and,
within three months, appointed counsel filed a motion to
withdraw, citing a breakdown in the attorney-client relationship.
Shortly, thereafter, Cargill filed a pro se motion expressing
concerns with the effectiveness of appointed counsel’s
representation. The magistrate judge held a hearing, and based
on counsel’s representations that he could not continue to
represent Cargill due to her efforts “to sabotage [him] and the
work [he was] doing not only for her” but also the fact that she
had made efforts to contact his other clients and impugn his work
on their cases, the magistrate judge granted counsel’s request to
withdraw, and appointed a fourth attorney to represent Cargill.
2
Specifically, the Assistant United States Attorney on behalf of the
government advised the district court that Cargill’s counsel was an
anticipated witness for the government in an unrelated habeas case.
However, the government stated that it was notifying the court of the
circumstances out of an abundance of caution, and it did not believe there
was a conflict of interest. Cargill’s counsel filed a response indicating that
she also did not believe there was a conflict of interest.
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Within two months of the fourth counsel’s appointment,
however, Cargill, through counsel, filed a motion requesting
permission to proceed pro se with current counsel serving as
“standby” or “hybrid” counsel, and requested a Faretta3 hearing.
The government opposed Cargill’s request for “hybrid
representation.”
A magistrate judge held a hearing on Cargill’s motion. The
magistrate judge explained that Cargill had a right to represent
herself pro se, but that before the court could grant her request, it
needed to “make certain determinations,” including whether she
was “doing this knowingly and voluntarily” and whether she
understood “the obligation[s]” and “potential consequences” of
representing herself. When asked what she was requesting,
Cargill explained that she wanted to “take on a more active role in
the case” “as a pro se defendant.” She further elaborated:
I’m requesting the right to a self-representation and
waiv[ing] in [sic] my right [to] Sixth Amendment . . .
counsel but at the same time requesting to work
with co-counsel, Attorney Bramer, as hybrid
representation co-counsel to take on the more
difficult parts or the tactical parts of the procedure
such as Federal Rules of Evidence and helping with
the objections and tactical parts . . . .
The magistrate judge then stated:
3 Faretta v. California,
422 U.S. 806 (1975).
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You understand that proceeding in that manner
given what you’re charged with really doesn’t make
sense? And that’s why we are here to make sure that
that’s what you want to do, because giving up your
right to legally trained adequate counsel is a big deal
given the charges you’re facing and the potential
consequences of doing so.
...
You understand [Attorney Bramer is] not going to
be your co-counsel; you’re representing yourself?
That’s what you’re asking the court to do. He
would be assisting you if the court allowed him to
assist you . . . . I could let you do what you’ve
asked, which is to represent yourself, and have him
sit as advisory counsel or standby counsel . . . .
Either way, you don’t have a right to hybrid counsel;
you understand that?
Cargill confirmed that she understood. The magistrate judge
then asked for Cargill’s counsel’s opinion on the matter, and
counsel expressed that he believed that, although she was not
entitled to hybrid representation, hybrid counsel was in Cargill’s
“best interest.” The government opposed Cargill’s request.
The magistrate judge noted that Cargill’s competency had
been evaluated and she was deemed competent to stand trial, and
asked her counsel whether Cargill appeared to understand what
she was doing and could assist in her own defense. Counsel
expressed that Cargill was “very intelligent,” “a sharp thinker,”
“articulate,” understood “what’s going on,” and was “very aware
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of the case and all the aspects of the case.” The magistrate judge
again asked Cargill whether she “desire[d] to represent herself,”
and Cargill stated:
this is a knowing and intelligent decision to
relinquish my right to counsel, to exercise my right
to self-representation. However, I do know that it is
not by right that I receive either hybrid, standby, or
assistant counsel. I do ask the court to consider that.
But this is a knowing, intelligent decision voluntarily
to exercise my right and waive[] my Sixth
Amendment right to counsel.
She confirmed that she wanted to represent herself “regardless of
[the] circumstances.” She stated that, although she had no formal
legal education, she had learned “a lot of things” in the last two
years since being charged and had “studied day and night.”
The magistrate judge then reviewed the charge against her
and the possible penalties, and Cargill stated that she understood.
The magistrate judge explained that, if Cargill represented herself,
the court could not help or give her advice on how to try the case,
and that she would need to become familiar with the Federal
Rules of Evidence and Criminal Procedure. She stated that she
understood. The magistrate judge advised Cargill that self-
representation or the hybrid or standby counsel situations were
not in Cargill’s best interest, and he urged her “to not represent
[herself].” Cargill maintained that she understood, but that she
desired to represent herself, and that her decision was “entirely
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voluntary.” Accordingly, the magistrate judge determined that
she had knowingly and voluntarily waived her right to counsel
and explained that he would recommend that her motion be
granted.
The magistrate judge then issued a report and
recommendation, recommending that Cargill be allowed to
proceed pro se, and that her request for hybrid representation—
although very rare—be granted. The district court agreed and
granted Cargill’s motion over the government’s objections.
Approximately two months later, the government filed a
superseding indictment that added a new charge of attempted
witness tampering involving witness Gerald Starks. Cargill
pleaded not guilty and waived her right to a trial by jury.
The case proceeded to a bench trial, at which Cargill
represented herself with the assistance of hybrid counsel. In
relevant part, at trial, the government called an IRS agent who
testified that the investigation revealed that Cargill and her co-
conspirators would solicit individuals under the guise that they
were “operating a grant program or a not-for-profit program that
would give money for various reasons,” such as financial aid for
college, and financial assistance for those impacted by the
economic recession. She and her co-conspirators would then use
the personal identifying information supplied by individuals to file
false tax returns and have the refunds electronically deposited into
various bank accounts. The investigation revealed that 54 bank
accounts were involved in the scheme, which were tied to
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$1,096,000 in tax refunds from the IRS. Cargill personally
controlled four of these accounts, which received $171,000 in tax
refunds.
The agent also testified that during his investigation he
learned of “potential threats” to witnesses made by Cargill, as
evidenced in a recorded jail phone call and various e-mails. The
recorded jail phone call that allegedly contained a threat to a
witness was played for the court. In the call, Cargill’s brother
indicated that he received some mail from her, and the two
discussed that the documents contained information from Gerald
Starks, a potential witness. Cargill wanted the information to be
publicly disseminated to expose that Gerald was a snitch.
Specifically, Cargill said that she was “up against a wall” and that
witnesses Gerald and Tyronca Starks (Cargill’s cousin) needed to
“have some discomfort too.” 4 Cargill and her brother
brainstormed how to get the material onto the internet, spoke
generally about the materials—including grand jury testimony—
and commented on how the materials showed that the Starks lied
to investigators. Cargill stated that she wanted the “whole
conversation to go public” someplace where she could “tag”
people to see the conversation. Cargill said that Gerald told
investigators that people from a motorcycle club worked for
Cargill. Cargill said that the motorcycle club did not know her
4
Throughout the call, Cargill referred to Gerald and Tyronca Starks by their
nicknames, Goo and Punkin’.
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and if they learned that Gerald was a confidential informant, then
they “wouldn’t know him either.” Cargill said that the
motorcycle club would learn that Gerald was a confidential
informant once she was able to get the materials posted and
“linked to [her] page.” Her brother said he would try to post the
materials to an anonymous Facebook page. Cargill said that
someone else was operating her Facebook account and that she
would write to that person to tell her what to say. Cargill asked
her brother to copy the materials she sent to him and send them
to the president of the motorcycle club to show the club that
Gerald was a confidential informant and might be giving
information about them to law enforcement. Cargill stated she
wanted to show the motorcycle club that its “problem” was
Gerald.
Cargill’s sister, Kiara, testified that Cargill reached out to
her several times from jail asking Kiara for the address of the Low
Riders Motorcycle Club. Cargill told Kiara that she needed the
address to give to their brother so that he could get some mail to
the club. Kiara’s testimony about the correspondence was
corroborated by copies of e-mails she received from Cargill.
Gerald Starks (a.k.a. “Goo”) testified, as relevant to this
appeal, that he was charged in relation to the fraudulent tax
scheme case, and he pleaded guilty. At Cargill’s direction, he
opened a bank account to receive tax refunds, and he would
withdraw a portion of the refunds deposited to give to Cargill and
he would keep a portion as his “pay.” On cross-examination,
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Gerald testified that he spent time with the Low Riders
Motorcycle Club. When asked whether he was ever threatened
by Cargill’s husband, Darryl Harris (referred to as “Big Country”),
Gerald testified he was not threatened personally, but that Big
Country went to the motorcycle club, when Gerald was not
there, and told the club that Gerald “was a snitch.” Gerald
testified that he did not feel threatened by the motorcycle club.
He also confirmed that Cargill had not personally threatened him.
At the close of the government’s case, Cargill moved for a
judgment of acquittal, arguing in relevant part, that a judgment of
acquittal was appropriate on the witness tampering charge
because the telephone call “was just banter back and forth with
her brother” and Cargill “used no intimidation against any
witness.” The district court overruled the motion, concluding
that there was sufficient evidence from which the trier of fact
could reasonably conclude that criminal conduct occurred.
Cargill then testified, with regard to the witness tampering
charge, that she was “angry” during the jail phone call with her
brother, but that she did not threaten Gerald. She clarified “I
didn’t say I wanted [the motorcycle club] to do any harm to Goo,
because Goo is my family. I wanted them to make Goo be a man
and tell the truth. And that’s all I kept saying.” She explained that
when she stated she wanted Gerald to be in “discomfort,” she did
not mean that she wanted him killed or beaten up.
Cargill then moved to submit a second recorded jail phone
call between her and her husband, Big Country, arguing that the
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call would show that she was under duress and trying “fix the
situation outside” “to save others” when she tried to contact the
motorcycle club. The district court admitted the call over the
government’s hearsay and relevance objections. In the call,
Cargill’s husband stated that he asked the motorcycle club to send
a letter to Cargill’s lawyer stating that they were lying about
Cargill’s involvement, and if they did not send the letter then they
needed to “come for [him]” because he would “come and see”
them.
On cross-examination, Cargill admitted that she knew that
Gerald might be called as a witness and that he was involved with
the motorcycle club. She admitted that she sent her brother
copies of interviews and reports that she obtained during
discovery to give to the motorcycle club because she wanted
Gerald to feel discomfort. With the materials Cargill mailed to
her brother, she also included a letter to the motorcycle club,
which stated “make the call and tell the truth or make that
punk-ass coward be a man and tell the truth.” She clarified that
“make the call” meant that she wanted them to call her “attorney
and let him know that somebody will come here and tell the
truth.”
Following the defense’s case, Cargill, through her hybrid
counsel, renewed her motion for judgment of acquittal, which the
district court denied. The district court found Cargill guilty on
both counts.
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Prior to sentencing, the United States Probation Office
prepared a presentence investigation report (PSI), which indicated
that the total tax loss in the case was $1,096,668.68, which resulted
in a base offense level of 20. Cargill’s resulting guidelines range
was 168 to 210 months’ imprisonment. Cargill raised numerous
objections to the PSI, including an objection to the loss amount
used to determine her base offense level, arguing that IRS records
had two different unspecified loss numbers—one for the “claimed
loss” and one for the “actual loss.”
At sentencing,5 Cargill explained that she stood on her
objection to the total loss amount and did not make additional
argument. The district court did not directly address Cargill’s
objection to the total loss amount, but it implicitly overruled her
objection when it concluded that the guidelines calculation in the
PSI was correct. Cargill requested a sentence at the bottom of the
guidelines range, and the government requested a sentence at the
top of the guidelines range. The district court sentenced Cargill
to concurrent terms of 180 months’ imprisonment on each count
to be followed by three years’ supervised release. Cargill timely
appealed.
5
Cargill’s sentencing hearing took place in June 2020, and she agreed to
proceed by video teleconference. Due to technical difficulties that occurred,
the first sentencing hearing was stopped after Cargill set forth her objections
to the PSI, and the hearing was continued. At Cargill’s second sentencing
hearing, she requested a continuance, which was granted.
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II. Discussion
A. Whether Cargill’s waiver of right to counsel was
knowing and voluntary
Cargill argues that the district court erred in allowing her
to proceed pro se because it failed to conduct a proper Faretta
inquiry to ensure that she understood the risks and disadvantages
of proceeding pro se. In particular, she faults the magistrate judge
at the Faretta hearing for not exploring in depth whether she
understood the charges against her and the potential defenses
available.
We review de novo whether the defendant’s waiver of the
right to counsel was knowing and voluntary. United States v.
Garey,
540 F.3d 1253, 1268 (11th Cir. 2008) (en banc); see also
United States v. Hakim,
30 F.4th 1310, 1318 (11th Cir. 2022). It is
the government’s burden to show the validity of the waiver.
Hakim, 30 F.4th at 1318.
Under the Sixth Amendment, a criminal defendant has a
right to counsel “at all critical stages of the criminal process.”
Hakim, 30 F.4th at 1321 (quotations omitted). However, the
Sixth Amendment also implicitly grants a defendant the right to
represent himself. Faretta v. California,
422 U.S. 806, 814, 819
(1975). “Because the constitutional rights to counsel and to self-
representation cannot be exercised at once, a defendant can
exercise one only if he waives the other.” Hakim, 30 F.4th at
1322.
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To waive the right to counsel, the “defendant must clearly
and unequivocally assert the right of self-representation,” and the
waiver must be “knowing, intelligent, and voluntary.” United
States v. Owen,
963 F.3d 1040, 1048 (11th Cir. 2020) (quotations
omitted). “The ideal method of assuring that a waiver is valid is
for the trial court to conduct a pretrial [Faretta] hearing at which
the accused is informed of the charges, basic trial procedures, and
hazards of self-representation.” Id. at 1049 (quotations omitted).
But “[t]he ultimate test is not the trial court’s express advice, but
rather the defendant’s understanding. As long as the record
establishes that the defendant understood the risks of self-
representation and freely chose to face them, the waiver may be
valid.” Id. (quotations and internal citation omitted). We have
identified eight factors that we may consider to determine
whether the defendant’s waiver of the right to counsel was
knowing and voluntary:
(1) the defendant’s age, educational background, and
physical and mental health; (2) the extent of the
defendant’s contact with lawyers prior to trial;
(3) the defendant’s knowledge of the nature of the
charges, possible defenses, and penalties; (4) the
defendant’s understanding of rules of procedure,
evidence, and courtroom decorum; (5) the
defendant’s experience in criminal trials; (6) whether
standby counsel was appointed, and the extent to
which that counsel aided the defendant;
(7) mistreatment or coercion of the defendant; and
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(8) whether the defendant was trying to manipulate
the events of the trial.
Id. Importantly, a “defendant’s waiver may be valid even if some
of these factors weigh in [her] favor.” Id.
Here, the record confirms that the magistrate judge
conducted a lengthy Faretta hearing and that Cargill was aware of
the risks of representing herself and made a knowing, intelligent,
and voluntary waiver of her right to the assistance of counsel. At
the hearing, despite the magistrate judge’s advice that Cargill
representing herself would not be in her best interest and was ill-
advised, Cargill repeatedly and insistently stated that she
understood the risks and that her waiver was knowing and
voluntary. The magistrate judge advised Cargill of the charge
against her and the possible penalties, and Cargill confirmed that
she understood. The magistrate judge also informed Cargill that,
even though Cargill had no formal legal training, she would need
to familiarize herself with the Federal Rules of Evidence and
Criminal Procedure and that the court could not assist her with
the case, and she confirmed that she understood.
Although Cargill argues that the district court should have
done more to ensure that she understood the nature of the charge
against her and the possible defenses, the district court’s Faretta
inquiry was proper and the relevant factors demonstrate that
Cargill’s waiver of her right to counsel and election to proceed
pro se was knowing, intelligent, and voluntary. Furthermore, we
note that the district court went a step further in attempting to
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protect Cargill’s rights by appointing “hybrid counsel” to assist
her with the trial—an incredibly rare situation—as a defendant
does not have a constitutional right to hybrid representation. See
Cross v. United States,
893 F.2d 1287, 1291–92 (11th Cir. 1990).
And the record establishes that Cargill received significant help
from her hybrid counsel both in preparing for the bench trial and
at the bench trial. Accordingly, we conclude that Cargill’s waiver
of her right to counsel was knowing, intelligent, and voluntary,
and there was no Sixth Amendment violation.
B. Whether there was sufficient evidence for Cargill’s
attempted witness tampering conviction
Cargill argues that the district court erred in denying her
motions for judgment of acquittal on the attempted witness
tampering charge because the evidence was insufficient to sustain
her conviction given that Gerald Stark testified that he did not feel
threatened and that he was never threatened by Cargill herself.
We review the sufficiency of the evidence to support a
conviction de novo, considering the evidence in the light most
favorable to the government and drawing all reasonable
inferences and credibility choices in favor of the verdict. 6 United
6 The government argues that we should review Cargill’s challenge only for
a “manifest miscarriage of justice” because she failed to argue below that the
evidence was insufficient because Gerald testified that he did not feel
threatened. The manifest miscarriage of justice standard, however, “does
not apply unless the defendant makes no challenge to the sufficiency of the
evidence after the close of all evidence.” United States v. Baston, 818 F.3d
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States v. Moran,
778 F.3d 942, 958 (11th Cir. 2015). “We review
de novo the district court’s denial of a motion for judgment of
acquittal, applying the same standard used in reviewing the
sufficiency of the evidence[.]” United States v. Descent,
292 F.3d
703, 706 (11th Cir. 2002). “[W]e will not disturb a guilty verdict
unless, given the evidence in the record, no trier of fact could
have found guilt beyond a reasonable doubt.” United States v.
White,
663 F.3d 1207, 1213 (11th Cir. 2011) (quotation omitted).
It is illegal to use or attempt to use intimidation or threats
with the intent to “influence, delay, or prevent the testimony of
any person in an official proceeding.”
18 U.S.C. § 1512(b)(1).
“[W]hether a communication is a threat is a question of fact to be
left to [the trier of fact].” United States v. Davis,
854 F.3d 1276,
1293 (11th Cir. 2017) (quotation omitted). “If a reasonable
recipient, familiar with the context of the communication, would
interpret it as a threat, the issue should go to [the trier of fact].”
Id. (quotation omitted). The factfinder is free to conclude that the
defendant intended to tamper with a witness’s testimony, even if
the witness did not actually feel threatened.
Id.
There was sufficient evidence to convict Cargill of
attempted witness tampering. The government presented a
651, 663 (11th Cir. 2016). Here, Cargill challenged the sufficiency of the
evidence on the witness tampering charge, arguing that she “used no
intimidation against any witness.” That argument was sufficient to preserve
her sufficiency challenge for appeal. Accordingly, we review the sufficiency
of the evidence de novo.
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phone call in which Cargill discussed exposing Gerald Starks as a
confidential informant to the Low Riders motorcycle club
because she wanted him to experience “some discomfort,” and
evidence was presented that Cargill’s husband went to the
motorcycle club and told them that Gerald “was a snitch.”
Additionally, in Cargill’s letter to the motorcycle club, she asked
the club to “make the call and tell the truth or make that punk-ass
coward be a man and tell the truth.” Regardless of Gerald’s
testimony that he did not feel threatened, viewing the evidence in
the light most favorable to the government, the district court
judge as the trier of fact was free to conclude that Cargill
knowingly attempted to tamper with Gerald’s testimony.
Accordingly, we conclude that the evidence was sufficient to
sustain Cargill’s conviction.
C. Whether the district court erred in attributing the total
loss amount to Cargill when calculating her base
offense level under the Sentencing Guidelines.
Cargill argues that the district court erred in using the total
loss amount to determine her base offense level because there
was no evidence that connected her to all of the accounts in
question or the total loss amount. She maintains that she should
be held accountable only for the total amount that came into
accounts controlled or otherwise connected to her.
As an initial matter, we agree with the government that
Cargill failed to preserve this specific issue for appeal. Although
Cargill objected below to the total loss amount used to determine
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her base offense level, she did so on different grounds, arguing
that the IRS records had two different unspecified loss numbers—
one for the “claimed loss” and one for the “actual loss.” She did
not argue that only the loss amount directly attributable to her
should be used to determine her base offense level. Accordingly,
her objection was not sufficient to preserve her present challenge,
and we review for plain error. See United States v. Ramirez-
Flores,
743 F.3d 816, 821 (11th Cir. 2014) (holding that “[t]he
defendant . . . fails to preserve a legal issue for appeal if the factual
predicates of an objection are included in the sentencing record,
but were presented to the district court under a different legal
theory” (alteration in original) (emphasis and quotations
omitted)).
To establish plain error, Cargill must show “(1) that the
district court erred; (2) that the error was plain; and (3) that the
error affected [her] substantial rights. If all three conditions are
met, we then decide whether the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings.”
United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014)
(alterations adopted) (quotations and internal citations omitted).
Cargill cannot show that any error occurred, much less a
plain error. “[T]ax loss is the total amount of loss that was the
object of the offense (i.e., the loss that would have resulted had
the offense been successfully completed).” U.S.S.G. § 2T1.1(c)(1).
The district court “must ‘simply make a reasonable estimate’ of
the tax loss ‘based on the available facts.’” United States v. Zitron,
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810 F.3d 1253, 1261 (11th Cir. 2016) (quoting U.S.S.G. § 2T1.1
cmt. (n.1)).
“A defendant may be held 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). The district court “must determine the scope of the
defendant’s criminal activity prior to considering all reasonably
foreseeable acts of co-conspirators.”
Id. In determining the scope
of the defendant’s criminal activity, the district “court may
consider any explicit agreement or implicit agreement fairly
inferred from the conduct of the defendant and others.”
Id.
(quotation omitted). However, if the record otherwise supports
the reasonably foreseeable determination, a district court’s
“failure to make specific findings will not require vacating the
sentence.”
Id.
Here, the record supports using the total loss amount to
calculate Cargill’s offense level. The IRS special agent testified
that approximately $1,096,000 in IRS tax refunds was deposited in
54 bank accounts involved in the tax fraud scheme. Furthermore,
at sentencing, the district court found that the scheme was
“extensive” and that Cargill was an organizer or leader. This
finding was supported by evidence that Cargill was a key member
of the conspiracy, recruited several other members of the
conspiracy, personally obtained the personal identifying
information for filing the fraudulent returns, and had her co-
conspirators withdraw money deposited in their accounts and
USCA11 Case: 20-13507 Date Filed: 09/22/2022 Page: 22 of 22
22 Opinion of the Court 20-13507
give it to her. Accordingly, even though only a portion of the
total tax loss went into Cargill’s accounts, the district court did
not plainly err in attributing the total loss amount to Cargill for
purposes of determining her base offense level because the
evidence supported that Cargill was a key member who agreed to
participate fully in the conspiracy, such that she can be held
responsible for acts of her co-conspirators. See Zitron, 810 F.3d at
1261 (holding, under similar circumstances, that the district court
did not err in attributing the total loss amount to defendant);
Baldwin, 774 F.3d at 727–28 (same).
Accordingly, for the above reasons, we affirm Cargill’s
convictions and sentences.
AFFIRMED.
