United States v. Kenneth Brown ( 2013 )


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  •                             REVISED JULY 25, 2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 12-10592                        July 16, 2013
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    KENNETH WAYNE BROWN; LEAH MICHELE BROWN,
    Defendants - Appellants
    Appeals from the United States District Court
    for the Northern District of Texas
    Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District
    Judge.*
    HIGGINSON, Circuit Judge:
    In this direct appeal, Kenneth and Leah Brown challenge the sufficiency
    of the evidence supporting their federal jury trial convictions for conspiracy to
    commit theft from a program receiving federal funds, as well as the procedural
    and substantive reasonableness of their within-Guidelines sentences.
    Concluding that the evidence is sufficient to support their convictions, and that
    their sentences are procedurally and substantively reasonable, we AFFIRM.
    *
    District Judge of the Western District of Texas, sitting by designation.
    No. 12-10592
    BACKGROUND
    Kenneth and Leah Brown were charged in a single-count superseding
    indictment with conspiracy to commit theft from a program receiving federal
    funds, in violation of 
    18 U.S.C. §§ 371
    , 666(a)(1)(A). The indictment alleged that
    the Browns conspired with Patricia Leathers and others to defraud the City of
    Garland, Texas. Between 1999 and 2008, Leathers worked as an in-house
    property and casualty claims adjuster for the City of Garland. In that capacity,
    Leathers was responsible for investigating claims for property damage against
    the City, evaluating the City’s liability, and negotiating claim settlements.
    During that period, Leathers used her position to prepare false claims and to
    direct the City to issue settlement checks for up to $10,000, the ceiling of her
    authority to settle claims and authorize disbursements without supervisory
    approval. By the time the conspiracy was detected, Leathers had issued checks
    for hundreds of fraudulent claims resulting in a loss to the City of approximately
    $1.9 million.
    The indictment details that the Browns facilitated the check-cashing
    scheme by submitting false insurance claims to the City of Garland for
    reimbursement; fraudulently obtaining checks issued by the City of Garland and
    made payable to Kenneth Brown, Leah Brown, and their friends and relatives;
    endorsing the checks; cashing the checks or depositing them at banks where the
    defendants or their co-conspirators held accounts; and sharing the proceeds. The
    indictment specifically alleges that Leah Brown endorsed her name on the back
    of two checks, totaling $11,275, and that “at least fourteen checks totaling more
    than $102,000.00 were endorsed and negotiated by Kenneth Brown.” The
    Browns pleaded not guilty to the indictment and proceeded to a jury trial.
    The trial lasted four days. The government called fourteen witnesses in
    its case-in-chief: Robby Neill, the risk manager for the City of Garland; Steven
    2
    No. 12-10592
    Anderson, the accounting manager for the City of Garland; Matt Ladis, a
    detective for the Garland Police Department; Sheila Powell, an auditor for the
    United States Attorney’s Office for the Northern District of Texas; Beth Huntley,
    a forensic accountant with the Federal Bureau of Investigation (“FBI”); Jennifer
    Mullican, a Special Agent with the FBI; Jerry Diviney, Melissa Williams, Mark
    Enloe, Duane Stailey, and Crystal Thompson, co-conspirators or participants in
    the check-cashing scheme; and Joshua Clay, Angie Smith, and Brent Estep,
    individuals whose names were used on checks without their knowledge. The
    defense did not call any witnesses. The jury returned guilty verdicts against
    both defendants on the sole count charged.
    The district court sentenced the Browns together in a joint hearing. The
    court sentenced Kenneth Brown to forty-two months of imprisonment, the
    midpoint of his Guideline range, followed by two years of supervised release.
    The court sentenced Leah Brown to thirty-four months of imprisonment, the
    midpoint of her Guideline range, followed by two years of supervised release.
    Additionally, the court ordered both defendants to pay restitution to the City of
    Garland, for which they are jointly and severally liable with their
    co-conspirators. The Browns filed timely notices of appeal.
    DISCUSSION
    The Browns argue on appeal that the evidence was insufficient to support
    their convictions for conspiracy to commit theft from a federally funded program
    and that their sentences are procedurally and substantively unreasonable.
    I.     Sufficiency challenges
    The Browns were convicted of a single count of conspiracy to commit theft
    from a program receiving federal funds. The substantive offense of theft from
    a program receiving federal funds makes it a crime for an “agent” of an
    “organization,” “government,” or “agency” that “receives, in any one year period,
    benefits in excess of $10,000 under a Federal program,” to embezzle, steal,
    3
    No. 12-10592
    obtain by fraud, or otherwise without authority knowingly convert or
    intentionally misapply “property” “that is valued at $5,000 or more” and “is
    owned by, or is under the care, custody, or control of such organization,
    government, or agency.” 
    18 U.S.C. § 666
    (a)–(b); Fifth Circuit Pattern Jury
    Instructions (Criminal Cases) § 2.37A (2012); United States v. Ollison, 
    555 F.3d 152
    , 159 (5th Cir. 2009). “In short, . . . there must be an individual who acts as
    an agent of an organization, the individual must have unlawfully obtained funds
    from this organization, and the organization must receive over $10,000 in federal
    funds in any one year period.” United States v. Abu-Shawish, 
    507 F.3d 550
    , 556
    (7th Cir. 2007).
    To obtain convictions against Kenneth and Leah Brown for conspiracy to
    commit that offense, the government was required to prove beyond a reasonable
    doubt that each of the Browns entered into an agreement with at least one other
    person to commit theft from a program receiving federal funds, knowing the
    purpose of the agreement and joining in it willfully, and one of the conspirators
    knowingly committed an overt act in furtherance of the conspiracy. 
    18 U.S.C. § 371
    ; Fifth Circuit Pattern Jury Instructions (Criminal Cases) § 2.20 (2012);
    United States v. Read, 
    710 F.3d 219
    , 226 (5th Cir. 2012) (per curiam).
    On appeal, the Browns contend that the evidence adduced at trial was
    insufficient to support their convictions.    Specifically, they argue that the
    government failed to establish the “federal funds,” “nexus,” and “knowledge”
    elements. See discussion infra Parts I.A, I.B, I.C. Our standard of review of
    those challenges hinges on whether they were properly preserved.
    At the close of the government’s case-in-chief, counsel for Kenneth Brown
    and counsel for Leah Brown separately moved for judgment of acquittal under
    Federal Rule of Criminal Procedure 29(a).        Kenneth Brown “move[d] for
    judgment of acquittal on the grounds that there is insufficient evidence to
    establish the elements of knowingly and willfully.” Leah Brown began by
    4
    No. 12-10592
    specifically challenging the knowledge element—“we move for a judgment of
    acquittal on behalf of Ms. Leah Brown on the grounds that there’s insufficient
    evidence of intentionally, knowingly, willfully”—but went on to challenge, more
    broadly, that “the Government has wholly failed to establish all of the elements
    necessary for conviction under conspiracy.” The district court denied both
    motions.
    Kenneth Brown specifically preserved his sufficiency challenge to the
    knowledge element by filing a timely motion for judgment of acquittal, and,
    accordingly, our review of that challenge is de novo. Read, 710 F.3d at 226. But
    because he asserted “specific grounds for a specific element of a specific count for
    a Rule 29 motion,” Kenneth Brown failed to preserve sufficiency challenges to
    the “federal funds” and “nexus” elements, United States v. Herrera, 
    313 F.3d 882
    ,
    884 (5th Cir. 2002) (en banc) (per curiam); accordingly, our sufficiency review of
    those elements is for “manifest miscarriage of justice,” United States v.
    McDowell, 
    498 F.3d 308
    , 312 (5th Cir. 2007). Leah Brown, by contrast, objected
    that the government failed to establish all of the elements of the conspiracy
    offense. Because a general challenge to the sufficiency of the evidence preserves
    de novo review as to all potential sufficiency issues, our review of her challenge
    to each of the elements of the offense is de novo. See Herrera, 
    313 F.3d at
    885 n.*
    (ruling that a defendant who “chose to make a quite specific, not a general,
    motion for judgment of acquittal” did not preserve his sufficiency objection as to
    all elements of the crime).
    In reviewing de novo the sufficiency of the evidence, we ask whether “any
    rational trier of fact could have found the essential elements of the crime beyond
    a reasonable doubt.” United States v. Cooper, 
    714 F.3d 873
    , 880 (5th Cir. 2013)
    (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979)). In reviewing for
    manifest miscarriage of justice, we assess whether “the record is devoid of
    evidence pointing to guilt,” or “the evidence on a key element of the offense is so
    5
    No. 12-10592
    tenuous that a conviction would be shocking.” McDowell, 
    498 F.3d at 312
    (internal quotation marks omitted). Under both standards, “we consider the
    evidence in the light most favorable to the government, giving the government
    the benefit of all reasonable inferences and credibility choices.” 
    Id.
     (internal
    quotation marks omitted). Where, as here, the evidence satisfies the less
    searching Jackson standard, it follows that there has been no manifest
    miscarriage of justice.
    A.     Federal funds element
    The federal funds element requires that “the organization, government,
    or agency receives, in any one year period, benefits in excess of $10,000 under
    a Federal program involving a grant, contract, subsidy, loan, guarantee,
    insurance, or other form of Federal assistance.” 
    18 U.S.C. § 666
    (b). To prove this
    element, the government elicited testimony from Steven Anderson, the accounting
    manager for the City of Garland. He testified, in relevant part, as follows:
    Counsel:     And as part of the funding for the City of Garland, does
    the City also receive assistance from the federal
    government?
    Anderson: Yes, we do.
    Counsel:     Specifically from the years 1998 and each successive
    12-month period until the year 2008, did the City of
    Garland receive more than $10,000 each one of those
    years?
    Anderson: Yes, we did.
    The Browns assert that this testimony, without corroborating documentary
    evidence, is insufficient to establish that the City of Garland received a
    minimum of $10,000 in federal funds during the period of the conspiracy. The
    government responds that “unchallenged testimony from a person highly
    knowledgeable about and responsible for the city’s funding sources easily defeats
    the [Browns’] challenge to this element.”
    6
    No. 12-10592
    Both sides agree that United States v. Jackson, 
    313 F.3d 231
     (5th Cir.
    2002), is the closest case on point. In Jackson, as here, the defendants were
    convicted of conspiracy to commit theft from a program receiving federal funds
    and challenged on direct appeal the sufficiency of the evidence supporting the
    federal funds element. 
    Id. at 233
    . To prove this element, the government offered
    testimony from the City of Monroe’s director of administration that the City
    received federal grants in the amount of $12,900 and $10,090 for the Louisiana
    Folk Life Festival. 
    Id. at 234
    . Countervailing testimony was offered by the
    director of the Louisiana Folk Life Festival, which, together with supporting
    documentation, “demonstrated unequivocally that the $12,900 funding came
    from the Northeast Louisiana Arts Council (NELAC)” and that the second grant
    “was from the Louisiana Endowment for the Humanities (LEH)—not [the
    National Endowment for the Humanities].” 
    Id.
     at 234–35. Considered in total,
    the evidence “support[ed] an inference that the City received some funding
    indirectly from [] federal sources,” 
    id. at 235
     (emphasis added), but it was
    uncertain “how much of the grants from local or state agencies were of federal
    origin, and when such funds were received,” 
    id. at 235
    , 235–38. Accordingly, the
    court concluded, there was insufficient evidence from which the jury reasonably
    could infer—instead of speculate—that at least $10,000 of the funds came from
    federal sources and was received in the calendar years charged. 
    Id. at 238
    .
    The evidence in this case reveals no such uncertainty. The government
    established that Anderson, the City’s accounting manager for the previous two
    decades, was well informed about the City’s finances, accounts, and sources of
    funding. After clarifying his basis of knowledge, Anderson testified without
    equivocation that in each of the charged years, Garland received more than
    $10,000 in federal funding. The defendants did not cross-examine him on this
    point or offer evidence or argument rebutting it or calling it into question.
    7
    No. 12-10592
    The Browns’ argument, therefore, reduces to a single contention: that
    testimony not corroborated by documentary evidence is insufficient as a matter
    of law to prove the federal funds element. Jackson does not stand for that
    proposition, and defendants have not alerted us to any case that does. To the
    contrary, other courts have affirmed § 666 convictions against sufficiency
    challenges where, as here, proof of the federal funds element was established
    through unchallenged testimonial evidence without corroborating documentary
    evidence. See United States v. Robinson, 
    663 F.3d 265
    , 270 (11th Cir. 2011)
    (evidence “easily” sufficient where director of grants for Chicago Police
    Department testified that Chicago received a federal grant in the amount of $4.2
    million); United States v. Baldridge, 
    559 F.3d 1126
    , 1133, 1138–39 (10th Cir.
    2009) (evidence sufficient where “[t]wo individuals testified that for the fiscal
    year ending June 30, 2005, Rogers County received . . . a total of $685,464.97”
    in federal funds); United States v. Kranovich, 
    401 F.3d 1107
    , 1112–13 (9th Cir.
    2005) (evidence sufficient where police sergeant testified that county had been
    approved for a federal grant of $12,775).              We agree that “[a]lthough the
    government could have easily produced documentation to establish the amount
    of federal funding, its failure to do so does not preclude a reasonable juror from
    finding that this jurisdictional qualification was satisfied.”1 United States v.
    McAllister, 
    141 F.3d 1181
    , at *1 (9th Cir. 1998) (unpublished); see also Robinson,
    663 F.3d at 270; Baldridge, 
    559 F.3d at 1133
    , 1138–39; Kranovich, 
    401 F.3d at
    1112–13.
    1
    While we conclude that the testimonial evidence here was adequate, we have stressed
    in the past—and continue to stress today—that it is best practice for the government to provide
    documentary evidence to corroborate that the amount of federal funds received satisfied the
    $10,000 threshold under 
    18 U.S.C. § 666
    (b). See Jackson, 
    313 F.3d at 238
     (emphasizing, when
    the government did not provide “a single record reference to suggest how much of the $11,500
    was of federal origin[,]” that “[t]o meet its burden of presenting evidence from which a jury
    might properly find an element of a crime proved beyond a reasonable doubt, the government
    must present more than a mere scintilla of evidence”).
    8
    No. 12-10592
    B.    Nexus element
    The crime of theft from a program receiving federal funds requires a
    “nexus between the criminal conduct and the [organization, government, or]
    agency receiving federal assistance.” United States v. Whitfield, 
    590 F.3d 325
    ,
    345 (5th Cir. 2009); United States v. Phillips, 
    219 F.3d 404
    , 413–14 (5th Cir.
    2000) (emphasis omitted); United States v. Moeller, 
    987 F.2d 1134
    , 1137 (5th Cir.
    1993) (citation omitted); see also 
    18 U.S.C. § 666
     (requiring that the property at
    issue be “owned by” or “under the care, custody, or control of” an “organization,
    government, or agency” that “receives, in any one year period, benefits in excess
    of $10,000 under a Federal program”).
    The Browns argue that the prosecution did not carry its burden of proving the
    nexus element because the evidence allows for the possibility that the City had a
    separate account into which federal funds were deposited and over which Leathers
    had no control. Assuming arguendo that this challenge was properly briefed, it is
    unavailing. Although the prosecution bears the burden of proving each element of
    a crime beyond a reasonable doubt, In re Winship, 
    397 U.S. 358
    , 361–64 (1970), it
    is not required “to exclude every reasonable hypothesis of innocence; the jury is free
    to choose among reasonable interpretations of the evidence,” United States v.
    Perrien, 
    274 F.3d 936
    , 939–40 (5th Cir. 2001). Thus, the government was not
    required to offer evidence disproving the existence of a hypothetical separate
    account into which federal funds could have been deposited and over which
    Leathers might have had no control. See Perrien, 
    274 F.3d at
    939–40; United States
    v. Guanespen-Portillo, 
    514 F.3d 393
    , 397 (5th Cir. 2008) (rejecting defendants’
    sufficiency challenge that “the evidence does not exclude the possibility that there
    was another group in the area at the same time of their arrest”).
    The Browns argue also that the required nexus is absent because “the
    money that was used to pay the claims was generated from tax revenue, utility
    revenue, miscellaneous fees and permits.” Assuming arguendo the Browns did
    9
    No. 12-10592
    not disclaim this challenge during oral argument, it, too, falls short. The
    Supreme Court has held, and we have reiterated, that the required nexus is not
    between the property and the federal funding, but between the criminal conduct
    and the organization, government, or agency receiving federal assistance. See
    Salinas v. United States, 
    522 U.S. 52
    , 56–57 (1997) (“The enactment’s expansive,
    unqualified language, both as to the bribes forbidden and the entities covered,
    does not support the interpretation that federal funds must be affected to violate
    § 666(a)(1)(B).”); Whitfield, 
    590 F.3d at 345
     (“[S]o long as there is a nexus
    between the criminal conduct and the agency, the lack of a direct connection
    between the . . . funds under the judges’ control and the federal funds in question
    does not preclude them from being considered agents of the [Administrative
    Office of the Courts] for the purposes of section 666.”) (internal quotation marks
    and citation omitted); Phillips, 
    219 F.3d at
    413–14 (“[A]lthough the conduct
    prohibited by section 666 need not actually affect the federal funds received by
    the agency, there must be some nexus between the criminal conduct and the
    agency receiving federal assistance.”) (emphasis omitted) (quoting Moeller, 
    987 F.2d at 1137
    ). The property at issue—here, City funds—“need not be purely
    federal, nor must the conduct in question have a direct effect on federal funds.
    The statute possibly can reach misuse of virtually all funds of [a local
    government],” as long as the government received the requisite federal funding
    and the agent involved “was authorized to act on behalf of the [government] with
    respect to its funds.” Phillips, 
    219 F.3d at 411
    . The prosecution established with
    competent evidence, and the Browns did not offer rebuttal evidence challenging,
    that (1) Leathers was an agent of the City of Garland, a local government
    receiving the required amount of federal funding, (2) Leathers was authorized
    to act on behalf of the City with respect to its funds, and (3) the check-cashing
    scheme she orchestrated and the Browns facilitated resulted in the loss of more
    than $1 million in City funds. Consequently, it was reasonable for the jury to
    10
    No. 12-10592
    conclude from the evidence presented that the government proved the requisite
    nexus beyond a reasonable doubt. See Salinas, 
    522 U.S. at
    56–57; Whitfield, 
    590 F.3d at 345
    ; Phillips, 
    219 F.3d at
    413–14; Moeller, 
    987 F.2d at 1137
    .
    C.    Knowledge element
    To prove a federal conspiracy offense, the government must establish, inter
    alia, “the defendant’s knowledge of the unlawful objective and voluntary
    agreement to join the conspiracy.” United States v. Arledge, 
    553 F.3d 881
    , 888
    (5th Cir. 2008). As the district court instructed the jury:
    Mere presence . . . at the scene of an event, even with knowledge
    that a crime is being committed, or the mere fact that certain
    persons may have associated with each other, and may have
    assembled together and discussed common aims and interests, does
    not necessarily establish proof of the existence of a conspiracy. Also,
    a person who has no knowledge of a conspiracy, but who happens to
    act in a way that advances some purpose of a conspiracy, does not
    thereby become a conspirator.
    But “[a] person may be guilty as a co-conspirator even if he plays only a minor
    role, and he need not know all the details of the unlawful enterprise or know the
    exact number or identity of all the co-conspirators, so long as he knowingly
    participates in some fashion in the larger objectives of the conspiracy.” United
    States v. Westbrook, 
    119 F.3d 1176
    , 1189 (5th Cir. 1997).             “[V]oluntary
    participation may be inferred from a collocation of circumstances, and knowledge
    may be inferred from surrounding circumstances.” United States v. Lucas, 
    516 F.3d 316
    , 342 (5th Cir. 2008).
    1.    Kenneth Brown
    Kenneth Brown claims that “[t]here was no evidence that [he] had any
    knowledge of the scheme that was created by Pat Leathers, Melissa Williams[,]
    or Jerry Diviney” and that “Diviney and Williams were unequivocal in their
    testimony that they did not tell [Kenneth] what the checks were for.”
    11
    No. 12-10592
    We conclude, to the contrary, that the jury’s finding that Brown was aware
    of the unlawful nature of the check-cashing scheme and knowingly joined it was
    well supported by the evidence. At trial, FBI Special Agent Jennifer Mullican
    testified that Brown admitted to her that he had cashed three fraudulent checks
    issued in his name. There is no evidence that Brown had, or believed he had, a
    legitimate claim against the City; indeed, Brown admitted to Mullican that “he
    felt that they were doing something wrong so he asked Mr. Diviney to stop
    having checks issued in his name.” That did not stop Brown from cashing checks
    payable to individuals with whom he was well acquainted and taking his share
    of the proceeds. Jerry Diviney, a co-conspirator, testified that when other
    individuals got “cold feet”—evidence that the scheme’s illegality was
    apparent—Brown agreed to cash checks made out to them and was paid
    $300–$500 for each check cashed. The government introduced into evidence
    more than a dozen such checks. Thus, it was reasonable for the jury to infer
    from the above evidence that Brown knew the purpose of the check-cashing
    scheme and joined it willfully. See United States v. Fernandez, 
    559 F.3d 303
    , 322
    (5th Cir. 2009) (explaining that the defendant’s “presence and association is part
    of the circumstantial evidence that she voluntarily joined the conspiracy,”
    notwithstanding her comparatively minor role); United States v. Nguyen, 
    504 F.3d 561
    , 570 (5th Cir. 2007) (holding that jury could reasonably conclude from
    the surrounding circumstances that the defendant knew that a property
    transaction was illegal, even though she did not structure the transaction or play
    a role in selling the property, where she voluntarily participated by writing
    checks and distributing the proceeds).
    2.   Leah Brown
    The same is true for Leah Brown. The government introduced into
    evidence two Garland checks totaling more than $11,000 signed by, and made
    payable to, Leah Brown. Jerry Diviney testified that Brown cashed those
    12
    No. 12-10592
    checks, even though she, like her husband, had no legitimate claim against the
    City. Diviney testified also that he gave Brown a share of the proceeds of the
    checks she cashed, and that, upon his request, Brown successfully recruited
    other individuals, including many family members, to take part in the scheme.
    Evidence that Brown personally cashed fraudulent checks, received a share of
    the proceeds, and recruited others to take part supports the jury’s finding that
    she knew the purpose of the check-cashing scheme and joined it willfully. See
    United States v. Curtis, 
    635 F.3d 704
    , 719–20 (5th Cir. 2011) (finding
    circumstantial evidence sufficient to establish knowing and willful participation in
    conspiracy where defendant recruited others and shared in the proceeds); United
    States v. Luke, 152 F. App’x 412, 413–14 (5th Cir. 2005) (per curiam) (unpublished)
    (affirming conviction for conspiracy against sufficiency challenge where defendant
    cashed fraudulent checks and shared in the proceeds); United States v. Ismoila, 
    100 F.3d 380
    , 389 (5th Cir. 1996) (holding that circumstantial evidence established
    defendant’s “role in the illegal scheme was not limited to her marital relationship”
    with a co-conspirator).
    II.    Sentencing challenges
    The Browns next challenge the procedural and substantive reasonableness
    of their within-Guidelines sentences. Because the Browns preserved these
    challenges by filing objections to the PSR and renewing their objections during
    sentencing, we review the district court’s interpretations of the Guidelines de
    novo, and the district court’s findings of fact for clear error. United States v. Le,
    
    512 F.3d 128
    , 134 (5th Cir. 2007).
    A.    Procedural reasonableness
    The Browns contend that the district court made two procedural errors at
    sentencing. First, they claim that the court erroneously applied a three-level
    enhancement for their managerial roles in the offense. Second, they assert that
    13
    No. 12-10592
    the court attributed to them amounts of monetary loss for which they not are
    responsible.
    1.    Managerial role enhancement
    The Guidelines provide for a three-level increase to a defendant’s base-
    offense level “[i]f the defendant was a manager or supervisor (but not an
    organizer or leader) and the criminal activity involved five or more participants
    or was otherwise extensive.” U.S.S.G. § 3B1.1(b). The district court applied this
    enhancement on the basis of its finding that the Browns assumed “a supervisory
    role” in the check-cashing scheme by providing the names of new payees and
    recruiting others to cash checks. We will affirm the district court’s application
    of the managerial role enhancement “if it is plausible in light of the record read
    as a whole,” United States v. Nava, 
    624 F.3d 226
    , 229 (5th Cir. 2010), and will
    reverse “only if, based on the entire evidence, [we are] left with the definite and
    firm conviction that a mistake has been committed,” United States v. Rose, 
    449 F.3d 627
    , 633 (5th Cir. 2006).
    The Browns argue that they were not managers or supervisors of the
    scheme because, according to them, they did not “engage in decision-making
    authority on how the scheme was devised or carried out”, “recruit accomplices”,
    or “have a large share of the profits.” Their only role, they contend, was to cash
    checks.
    We agree that the Browns were not the ones who conceived of or
    principally orchestrated the check-cashing scheme, but their role was not so
    minimal as to disqualify them for the three-level “manager or supervisor”
    enhancement applied by the district court.         The district court found at
    sentencing that the Browns “recruited others to act as persons who would cash
    checks.” That finding is supported by Jerry Diviney’s trial testimony that Leah
    Brown gave him “family or friends’ names who were people willing to cash City
    of Garland checks,” by Mark Enloe’s trial testimony that he could not remember
    14
    No. 12-10592
    whether Diviney or Kenneth Brown recruited him to cash a check, and by
    evidence that family, friends, and co-workers of the Browns who had no other
    connection to Diviney or his daughter, Melissa Williams, ultimately become
    involved in the scheme. That finding is not disproved by the Browns’ testimony
    at sentencing that they did not recruit others; the district court was well
    positioned to evaluate their credibility and was entitled to reject their testimony
    as self-serving and inconsistent with the balance of the evidence presented. See
    United States v. Sotelo, 
    97 F.3d 782
    , 799 (5th Cir. 1996).
    The district court’s conclusion that the managerial role enhancement was
    therefore warranted is not implausible in light of the evidence as a whole,
    Guidelines commentary that “the recruitment of accomplices” is one factor “court[s]
    should consider,” § 3B1.1(b) cmt. n.4, and our precedent affirming role
    enhancements for similar conduct, see United States v. Liu, 
    960 F.2d 449
    , 456 (5th
    Cir. 1992) (finding no clear error in district court’s application of “manager or
    supervisor” enhancement to defendant responsible for finding accomplices to join,
    and customers to fund, an immigration fraud scheme); see also United States v.
    Ramcharan, 83 F. App’x 667, 671 (5th Cir. 2003) (per curiam) (unpublished)
    (finding no clear error in district court’s application of “manager or supervisor”
    enhancement where the defendant recruited family members to join an insurance
    fraud conspiracy and directed them in the filing of fraudulent claims).
    2.    Loss calculation
    The Guidelines “create[] a sliding scale that increases the defendant’s base
    offense level by zero to thirty [levels] depending on the amount of [actual or
    intended] loss.” United States v. John, 
    597 F.3d 263
    , 279 (5th Cir. 2010) (citing
    U.S.S.G. § 2B1.1(b)(1)). They provide for a ten-level increase if the offense
    results in a loss of more than $120,000 but less than $200,000, U.S.S.G. §
    2B1.1(b)(1)(F); and a twelve-level increase if the offense results in a loss of more
    $200,000 but less than $400,000, U.S.S.G. § 2B1.1(b)(1)(G). The district court
    15
    No. 12-10592
    adopted the PSR’s calculation that Kenneth Brown was responsible for a
    $304,553.62 loss and Leah Brown was responsible for a $142,554.48 loss; found,
    based on their particular involvement in the conspiracy, that those loss amounts
    were “reasonably foreseeable” to each defendant; and adjusted upward their
    offense levels accordingly.
    A district court’s loss calculation, and its embedded determination that the
    loss amount was reasonably foreseeable to the defendant, are factual findings
    reviewed for clear error. United States v. Hebron, 
    684 F.3d 554
    , 560 (5th Cir. 2012)
    (loss calculation reviewed for clear error); United States v. Hull, 
    160 F.3d 265
    , 269
    (5th Cir. 1998) (foreseeability determination reviewed for clear error). The district
    court need only make “a reasonable estimate of the loss,” Hebron, 684 F.3d at 560
    (citing § 2B1.1 cmt. n.3(C)), and, given the “unique position” it occupies to assess the
    loss amount, its loss calculation is entitled to appropriate deference, id.
    a.    Kenneth Brown
    The district court attributed to Kenneth Brown a loss amount of
    $304,553.62 based on the fourteen checks he cashed and twenty-five checks
    made payable to his friends, associates, and family members. Kenneth Brown
    contends that he “should only have been held responsible for the loss amount of
    the checks he actually endorsed.”
    Brown’s position that he is not responsible for checks cashed by others
    participating in the scheme is contradicted by U.S.S.G. § 1B1.3(a)(1)(B), which
    provides that a defendant is responsible for “all reasonably foreseeable acts and
    omissions of others in furtherance of the jointly undertaken criminal activity.”
    The district court’s finding that the loss resulting from the checks cashed by
    other members of the conspiracy was reasonably foreseeable to Brown is well
    supported. Brown recruited others to join, cashed checks when others backed
    out, and was a central cog in the conspiracy: his spouse, children, aunt, cousins,
    16
    No. 12-10592
    in-laws, business partner, employees, and friends cashed one or more fraudulent
    checks.
    b.   Leah Brown
    The district court attributed to Leah Brown a loss amount of $142,554.48
    based on the two checks she cashed and sixteen checks made payable to her
    friends, associates, and family members. She contests this amount on the sole
    basis that “[t]he evidence was insufficient to show [that she] acted in concert
    with others or participated in a jointly undertaken criminal activity.” Her
    specific challenge that she is not liable for a loss amount of $142,554.48 because
    she was not involved in the conspiracy is foreclosed by our earlier conclusion that
    the evidence supports her conviction for conspiracy.
    B.     Substantive reasonableness
    Having concluded that their sentences are procedurally sound, we turn to
    the Browns’ contention that their within-Guidelines sentences of forty-two
    months and thirty-four months of imprisonment are substantively unreasonable.
    Properly calculated within-Guidelines sentences enjoy a presumption of
    reasonableness that “is rebutted only upon a showing that the sentence does not
    account for a factor that should receive significant weight, it gives significant
    weight to an irrelevant or improper factor, or it represents a clear error of
    judgment in balancing sentencing factors.” United States v. Cooks, 
    589 F.3d 173
    ,
    186 (5th Cir. 2009) (citation omitted).      The Browns do not point to any
    sentencing factor improperly omitted from consideration or given inappropriate
    weight; they assert, without elaboration, that their sentences were “clearly
    unreasonable” considering their “entire li[ves], background, lack of criminal
    history, education, [and] all of the information contained in the PSR.” The
    district court took into consideration their personal circumstances when
    weighing the § 3553(a) factors and arriving at sentences it deemed “sufficient
    but not greater than necessary to comply with the statutory purposes” of
    17
    No. 12-10592
    punishment. The Browns give us no reason to disturb the district court’s
    considered judgment. See United States v. Diaz, 
    637 F.3d 592
    , 604 (5th Cir.
    2011) (holding that defendant failed to rebut the presumption of reasonableness
    where, contrary to the defendant’s objection, the record reflected that “[t]he
    district court did take into account [his] personal history”); United States v. Ruiz,
    
    621 F.3d 390
    , 398 (5th Cir. 2010) (“A defendant’s disagreement with the
    propriety of the sentence imposed does not suffice to rebut the presumption of
    reasonableness that attaches to a within-guidelines sentence.”).
    CONCLUSION
    For the foregoing reasons, the convictions and sentences of Kenneth and
    Leah Brown are AFFIRMED.
    18