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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13733
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00151-HES-JRK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAKEYA SHEONNA CREECH,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 11, 2018)
Before TJOFLAT, JORDAN and NEWSOM, Circuit Judges.
PER CURIAM:
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Lakeya Creech appeals the district court’s order that she pay $1,261,751.35
in restitution following her guilty plea to conspiracy to commit wire fraud in
violation of 18 U.S.C. §§ 2, 1342, and 1349. She argues that the district court erred
in determining the restitution amount and in failing to sufficiently explain its
findings. After review of the record and the parties’ briefs, we affirm the district
court’s restitution order.
I
Ms. Creech was involved in a fraudulent scheme to collect payments from
the United States Department of Agriculture in exchange for fictitious food sales.
In July of 2013, Ms. Creech submitted an application to the United States
Department of Agriculture to authorize her fictitious seafood business, Sheonna’s
Seafood, to receive Supplemental Nutrition Assistance Program (SNAP) benefits
as payment for any products sold. In November of 2013, Ms. Creech became
qualified to receive SNAP benefits from the USDA. From 2013 to 2015, members
of the conspiracy purchased Electronic Benefit Transfer (EBT) cards, typically for
fifty cents on the dollar, from their lawful recipients. They then used the cards at
point of service terminals in order to register fraudulent transactions at their
“seafood business,” i.e., Sheonna’s Seafood. The USDA then reimbursed those
transactions to the bank account Ms. Creech established to receive SNAP benefits.
Throughout 2014 and 2015, law enforcement agents investigated Ms. Creech and
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her co-conspirators by making undercover sales of EBT benefits to various
members of the conspiracy.
In October of 2015, a federal grand jury indicted Ms. Creech for conspiracy
to commit wire fraud. As noted, Ms. Creed pled guilty to this conspiracy charge.
At sentencing, the district court imposed a sentence of 15 months’
imprisonment. The district court also ordered Ms. Creech to pay $1,261,751.35 in
restitution to the USDA jointly and severally with her co-conspirators. The district
court found that Ms. Creech had been involved with the conspiracy from its
inception in 2013 to its conclusion in 2015. The district court relied, in part, upon
the amount of money fraudulently deposited into Ms. Creech’s business bank
account as stated in the presentence investigation report, as well as Ms. Creech’s
testimony at the change-of-plea hearing and the sentencing hearing.
II
We review de novo the legality of a restitution order “but review[ ] for clear
error the factual findings underpinning [that] order.” United States v. Brown,
665
F.3d 1239, 1252 (11th Cir. 2011). The Mandatory Victim Restitution Act directs
the district court to order restitution if the defendant is convicted of an offense
where a victim is “directly harmed by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(2).
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“The amount of restitution must be based on the amount of loss actually
caused by the defendant’s conduct.” United States v. Baldwin,
774 F.3d 711, 728
(11th Cir. 2014) (internal quotations omitted). The government bears the burden of
proving restitution amount by a preponderance of the evidence.
Id. Because of the
inherent difficulties in calculating an exact restitution amount, district courts may
rely on a reasonable estimate of the loss predicated on the evidence presented.
Id.
The district court must explain its findings clearly enough to allow for appellate
review. See United States v. Huff,
609 F.3d 1240, 1248 (11th Cir. 2010).
III
Ms. Creech does not dispute that the USDA suffered a loss in this case.
Indeed, from 2013 to 2015, Ms. Creech received over 1.2 million dollars in
payments from the USDA into her business bank account. But she argues that the
government did not meet its burden of proving the restitution amount by a
preponderance of the evidence because nothing “conclusively established the
actual loss amount” and the government was unable to “give a ‘precise number’
regarding the total amount of monies and/or transactions that were fraudulent” as
opposed to legitimate sales. See Br. of Appellant at 10–11.
As we explained in United States v. Martin,
803 F.3d 581, 594 (11th Cir.
2015), two principles govern our assessment of whether a district court correctly
calculated a restitution amount. The first is that restitution is not intended “to
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provide a windfall for crime victims but rather to ensure that victims, to the
greatest extent possible, are made whole for their losses.”
Id. (internal quotation
omitted). The second is that “the determination of the restitution amount is by
nature an inexact science.”
Id. (internal quotation omitted).
The government based its proposed restitution amount on the total payments
that the USDA made to Ms. Creech’s business account. At the sentencing hearing,
Ms. Creech admitted that over a million dollars were run through the business.
Similarly, an agent involved in the investigation testified that “roughly 1.2 million”
dollars went into Ms. Creech’s business account, according to USDA payment
records. The agent also testified that Sheonna’s Seafood only sold actual seafood
once in over two years and only in a very small quantity. Ms. Creech testified that
she bought crab legs to sell from Sheonna’s Seafood. When asked how many crab
legs she bought, she stated: “Maybe about three bags at the most.” D.E. 316 at 35.
Based on this evidence, the government calculated its losses at the full amount of
SNAP payments that went into Ms. Creech’s account, i.e., $1,261,751.35.
In making its factual findings concerning the amount of restitution owed, the
district court relied primarily upon two sources of evidence: the testimony of the
agent at the sentencing hearing as well as the testimony of Ms. Creech at both the
change-of-plea hearing and the sentencing hearing. The district court remarked that
“the agent’s testimony here reminded me of the fact that . . . this was just a typical
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rip-off with respect to the SNAP cards.” The district court further explained that
“the testimony of Ms. Creech . . . confirms my thoughts.” From those evidentiary
sources, the district court accepted the total SNAP payments to Ms. Creech’s
business account as a reasonable estimate of the loss amount the USDA suffered.
On this record, we conclude that the district court did not commit clear error in its
factual findings and properly applied the preponderance of the evidence standard.
See United States v. Futrell,
209 F.3d 1286, 1292 (11th Cir. 2000) (holding that the
district court properly applied the preponderance of the evidence standard in
accepting the government’s reasonably estimated restitution amount based upon
the available evidence). See also
Baldwin, 774 F.3d at 728 (holding that the
government properly based its calculation “on reasonable estimates taken from
facts in the record.”).
IV
Ms. Creech argues for the first time on appeal that the district court did not
sufficiently explain its findings and relied on unsubstantiated claims by the
government as to the total loss amount. So, we review this claim only for plain
error. See United States v. Aguillard,
217 F.3d 1319, 1320 (11th Cir. 2000).
A district court “must explain its findings with sufficient clarity to enable
this court to adequately perform its function on appellate review.”
Huff, 609 F.3d
at 1248. See also United States v. Gupta,
572 F.3d 878, 889 (11th Cir. 2009)
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(explaining that where the district court identifies no basis for the loss amount it
finds, appellate review of the amount is impossible). Here, the district court
adequately explained its findings and their basis. As to the restitution amount, the
district court heard testimony from one of the agents on that issue. The agent
testified that he had access to all the USDA transactional records as well as the
bank records for Sheonna’s Seafood. When asked, based on those records, how
much money in the form of SNAP benefits went into the Sheonna’s Seafood
account, he stated: “It was roughly 1.2 million . . . that’s working off the data that
we received from all the EBT transactions that are conducted to the USDA’s
database. And then we also reviewed the third-party processor data, which kind of
quadrates the USDA data.” D.E. 316 at 43. The agent testified about whether Ms.
Creech’s business ever made any legitimate purchases. When asked if there was a
record of any legitimate sales, he stated: “I believe there was one occasion where
some cooked seafood was sold, but it was a very small quantity, personal
consumable small amount.”
Id. at 42 (emphasis added).
Based on that testimony, the district court found that Ms. Creech was
responsible for the full amount of SNAP benefits she received: “[A]s I recall the
testimony in the case [ ] and the agent’s testimony here . . . this was just a typical
rip-off with respect to the SNAP cards.” D.E. 316 at 52. “And I find from the
testimony of Ms. Creech, when she said maybe she bought three boxes of crab legs
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at a time . . . that that confirms my thoughts.”
Id. at 52–53. This explanation, while
not incredibly detailed, is sufficient to enable us to perform our review.
VI
Ms. Creech has not established that the district court committed clear error
in its factual findings supporting the restitution order or plain error in its
explanation of those findings. Accordingly, we affirm the district court’s restitution
order.
AFFIRMED.
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