USCA11 Case: 22-11501 Document: 31-1 Date Filed: 05/23/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11501
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
APRIL THOMPSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00378-ELR-CMS-1
____________________
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2 Opinion of the Court 22-11501
Before WILLIAM PRYOR, Chief Judge, and BRANCH and ANDERSON,
Circuit Judges.
PER CURIAM:
April Thompson appeals her sentence of 80 months of im-
prisonment imposed after she pleaded guilty to ten counts of mail
fraud,
18 U.S.C. §§ 1341, 2. Thompson challenges the enhancement
of her sentence by two levels for obstructing justice, United States
Sentencing Guidelines Manual § 3C1.1, and the denial of a reduc-
tion for accepting responsibility, id. § 3E1.1. We affirm Thomp-
son’s sentence, but because the district court made a clerical error
in imposing a special assessment of $1,100, instead of $1,000 based
on her ten counts of conviction, see
18 U.S.C. § 3013(a)(2)(A), we
vacate and remand for the district court to correct the judgment.
We review factual findings by a district court for clear error
and its application of the Sentencing Guidelines de novo. United
States v. Matthews,
3 F.4th 1286, 1289 (11th Cir. 2021). To be clearly
erroneous, the finding of the district court must leave us with a
“definite and firm conviction that the court made a mistake.”
Id.
The district court did not clearly err by applying the obstruc-
tion of justice enhancement, § 3C1.1, because Thompson con-
cealed relevant financial information from the probation officer.
Thompson told the probation officer that, aside from her non-liq-
uid assets, she had only $80 in a personal checking account. A sen-
ior financial investigator with the U.S. Attorney’s Office later dis-
covered an undisclosed reloadable MetaBank account that was
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22-11501 Opinion of the Court 3
registered in Thompson’s husband’s name. The bank statements
revealed that, during a six-month period, both Thompson and her
husband used debit cards linked to the account to make almost
$40,000 in post-indictment purchases, including $24,000 in cash
withdrawals. The government also discovered that, in November
2021, about three weeks before Thompson pleaded guilty, she be-
gan diverting her income from a receiver-controlled bank account
into the undisclosed MetaBank account. She later acknowledged
that undisclosed bank account belonged to her and insisted that her
failure to disclose the account was an immaterial oversight.
Sufficient evidence supports the finding that Thompson
willfully concealed the existence of the bank account. See United
States v. Massey,
443 F.3d 814, 818–19 (11th Cir. 2004). Both Thomp-
son and her husband, a codefendant, omitted the account from
their disclosures to the probation officer and the government. At
sentencing, the receiver in the civil action testified that, when he
asked Thompson why her income was no longer being deposited
into her usual bank account, she said that her income had been put
“on pause,” and she failed to inform him about the MetaBank ac-
count. After diverting her income into the MetaBank account,
Thompson withdrew large sums of cash and made almost daily
purchases from the account during a six-month period that ended
the month before her sentencing. The district court did not clearly
err in finding that Thompson’s explanation was implausible and
that, regardless of her “shameful” conduct in the civil lawsuit, she
had deliberately misled the probation officer to ensure that the
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4 Opinion of the Court 22-11501
district court, government, and victim of her multi-million-dollar
invoicing scheme would not know the true extent of her assets.
Thompson’s willful omission met the “conspicuously low”
bar for materiality too. See United States v. Odedina,
980 F.2d 705,
707 (11th Cir. 1993). Revealing the account and the significant
transactions that depleted the account balance during the criminal
proceedings could have reasonably led the district court to disbe-
lieve that Thompson was remorseful for her offense conduct.
Thompson makes much of the fact that the MetaBank account bal-
ance was only $105.13 when she submitted her financial report to
the probation officer and argues that this amount was not enough
to be “material.” But her argument ignores the fact that, in the
month before and after the disclosure, the couple spent and with-
drew over $4,500 from the account and deposited over $8,250. The
existence of the account and the significant funds deposited and
withdrawn from it were not immaterial to the ability of the district
court to fashion an appropriate sentence, especially when consid-
ering her offense conduct of executing a large-scale invoicing
scheme.
Thompson argues that the district court erred by denying a
reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, be-
cause she pleaded guilty and accepted responsibility for her crimes.
She argues that, in the light of Kisor v. Wilkie, the plain text of sec-
tion 3E1.1 is unambiguous, so the commentary impermissibly ex-
pands the conduct that can result in a denial of the reduction.
139
S. Ct. 2400, 2415 (2019).
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22-11501 Opinion of the Court 5
In Stinson, the Supreme Court ruled that the commentary to
the Sentencing Guidelines should receive the same deference that
an administrative agency’s interpretation of its own rules receives.
Stinson v. United States,
508 U.S. 36, 45 (1993). This deference was
first described in Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410,
414 (1945), and affirmed in Auer v. Robbins,
519 U.S. 452, 461 (1997).
In Kisor, the Supreme Court clarified that Auer deference should be
applied only if an administrative regulation is “genuinely
ambiguous” and that, “[i]f uncertainty does not exist, there is no
plausible reason for deference” and “[t]he regulation then just
means what it means . . . .”
139 S. Ct. at 2414–15. We recently
explained that Kisor’s clarification of Auer and Seminole Rock applies
to the Sentencing Guidelines and that the commentary cannot
deviate from an unambiguous guideline. See United States v. Dupree,
57 F.4th 1269, 1275, 1277 (11th Cir. 2023) (en banc) (holding that
the defendant’s conviction for conspiring to possess with intent to
distribute controlled substances was not a “controlled substance
offense” because the plain text of the guideline unambiguously
excluded inchoate crimes).
Section 3E1.1(a) instructs the district court to reduce the of-
fense level by two levels “[i]f the defendant clearly demonstrates
acceptance of responsibility for [her] offense.” U.S.S.G. § 3E1.1(a).
The guideline does not define what constitutes “acceptance of re-
sponsibility,” much less state that pleading guilty is sufficient to re-
ceive the reduction. The district court did not err by denying the
reduction because Thompson failed to meet her burden of proving
that she had actually accepted personal responsibility where she
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6 Opinion of the Court 22-11501
made incomplete financial disclosures and engaged in a hidden pat-
tern of spending and cash withdrawals that would prevent the vic-
tim from obtaining restitution. See United States v. Sawyer,
180 F.3d
1319, 1323 (11th Cir. 1999).
We AFFIRM in part Thompson’s sentence and VACATE
AND REMAND in part for the limited purpose of correcting a cler-
ical error in the judgment.
