United States v. Kitterman, 070115 FED11, 14-12387

Docket Nº:14-12387
Opinion Judge:LINN, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRISTINA M. KITTERMAN, Defendant-Appellant.
Judge Panel:Before JORDAN, JULIE CARNES, and LINN, Circuit Judges.
Case Date:July 01, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CHRISTINA M. KITTERMAN, Defendant-Appellant.

No. 14-12387

United States Court of Appeals, Eleventh Circuit

July 1, 2015

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida

Before JORDAN, JULIE CARNES, and LINN, [*] Circuit Judges.

LINN, Circuit Judge

Christina Kitterman appeals her conviction and sentence for wire fraud. She argues that the district court committed reversible error in finding sufficient evidence to warrant denying her motion for judgment of acquittal, in its evidentiary rulings, and in its sentencing determination. Because there is sufficient evidence that Kitterman had the intent necessary to commit wire fraud, and because any errors the district court may have made in admitting evidence or in sentencing Kitterman were harmless, we affirm.

ANALYSIS1

This court has jurisdiction pursuant to 18 U.S.C. § 3742(a) (2012) and 28 U.S.C. § 1291 (2012).

a. Standard of Review

"We review de novo a district court's denial of judgment of acquittal on sufficiency of evidence grounds. . . . In reviewing a sufficiency of the evidence challenge, we consider the evidence in the light most favorable to the Government, drawing all reasonable inferences and credibility choices in the Government's favor." United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir. 2011) (citations and internal quotation marks omitted). A conviction is supported by sufficient evidence if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

We review a district court's evidentiary rulings for abuse of discretion and, if the evidentiary objection is preserved, also address harmless error. See Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300, 1309 (11th Cir. 2014); United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 821 (2006).

We review a district court's determination of loss in applying the sentencing guidelines for clear error. See United States v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007). Even if the district court clearly erred in its calculation of loss, we will not reverse the district court's sentence if the error is harmless. United States v. Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009). An error in applying the sentencing guidelines will be harmless "if the district court would have imposed the same sentence without the error, " id. at 1248, and the sentence is substantively reasonable.

We review the substantive reasonableness of the sentence by "assum[ing] that the guidelines issue should have been decided in the way the defendant argued and the advisory range reduced accordingly-and then ask[ing] whether the final sentence resulting from consideration of the § 3553(a) factors would still be reasonable." United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). We review the substantive reasonableness of a sentence "under a deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41 (2007).

b. Sufficiency of the Evidence

Kitterman concedes that the emails and telephone call described in the indictment were transmitted "by wire in interstate commerce, " but argues that there is insufficient evidence that she had the...

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