United States v. Sanders, 18-10884

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: PER CURIAM
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAYNARD SANDERS, Defendant-Appellant.
• Docket Number: No. 18-10884,18-10884
• Decision Date: 27 November 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MAYNARD SANDERS, Defendant-Appellant.

No. 18-10884

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

November 27, 2018

DO NOT PUBLISH

Non-Argument Calendar

D.C. Docket Nos. 4:16-cr-00358-LGW-GRS-1; 4:17-cr-00011-WYM-GRS-1

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

Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:

Maynard Sanders appeals his 186-month total sentence, imposed following his convictions on several counts of bank fraud, aggravated identity theft, and aiding and abetting theft by a bank employee. Sanders's offense conduct consisted of a scheme to withdraw money from victims' bank accounts without their permission,

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using fraudulently-obtained personal information and the assistance of two bank tellers, whom he recruited to help make the withdrawals. At sentencing, the district court calculated his intended loss amount at $480,000, which represented the total funds in a victim's bank account. Over the course of the scheme, Sanders and his coconspirators withdrew a total of about $20,000. On appeal, Sanders argues that the district court clearly erred in calculating his intended loss at $480,000, and in applying a resulting 12-level increase to his total offense level. After careful review, we affirm.

We review the district court's determination about the amount of loss under the Sentencing Guidelines for clear error. United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir. 2009). Clear error review is deferential, and we will only reverse when we are left with a definite and firm conviction that a mistake has been committed. United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). When a defendant challenges the factual basis of his sentence, the government must establish the disputed fact by a preponderance of the evidence, using "reliable and specific evidence." United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997) (quotation omitted).

Section 2B1.1 of the November 2016 Guidelines provides for a 12-level increase for a fraud offense involving between $250,000 and $550,000 in losses. U.S.S.G. § 2B1.1(b)(1)(G) (2016). The application notes clarify that the "loss is the

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greater of actual loss or intended loss." U.S.S.G. § 2B1.1, comment. (n.3(A)). "Actual loss" is defined as "the reasonably foreseeable pecuniary harm that resulted from the offense." Id., comment. (n.3(A)(i)). "Intended loss," on the other hand, means the pecuniary harm that was intended to result from the offense, including pecuniary harm "that would have been impossible or unlikely to occur." Id., comment. (n.3(A)(ii)).

The Guidelines do not require a precise determination of loss, and a court "need only make a reasonable estimate of the loss, given the available information." United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). (quotation omitted). When considering the loss caused by fraudulent conduct, "the nature of the individual scheme must determine the correct way to measure the loss." United States v. Woodard, 459 F.3d 1078, 1087 (11th Cir. 2006). Because district courts are in a unique position to evaluate the evidence relevant to a loss determination, their determinations are entitled to appropriate deference. United States v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011). The court is able to make factual findings concerning its loss determination based on evidence heard during trial or during the sentencing hearing. Id. A court "may not speculate about...