United States of America v. Wilbert Adam Theodore

United States Court of Appeals
For the Eighth Circuit
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No. 22-3532
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United States of America
Plaintiff - Appellee
v.
Wilbert Adam Theodore
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: September 18, 2023
Filed: October 11, 2023
[Unpublished]
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Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Wilbert Adam Theodore pled guilty to wire fraud in violation of 18 U.S.C. §
1343. The district court1 sentenced him to 70 months in prison. He appeals his
sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
1 The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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I.
Theodore engaged in a coordinated scheme with others to negotiate forged
checks for profit. At sentencing, the district court imposed a two-level enhancement
for using sophisticated means under U.S.S.G. § 2B1.1(b)(10)(C). Theodore contests
the enhancement. This court reviews for clear error the factual finding that a scheme
involved sophisticated means. United States v. Meadows, 866 F.3d 913, 917 (8th
Cir. 2017). Sophisticated means involve “especially complex or especially intricate
offense conduct pertaining to the execution or concealment of an offense.” U.S.S.G.
§ 2B1.1, cmt. n.9(B). “Although there is no mechanical test to determine whether a
scheme is sufficiently sophisticated to qualify for the enhancement,” this court looks
“at the following factors: (1) the overall length of the scheme, (2) the use of forged
or false documents, and (3) the use of Ponzi-type payments.” Meadows, 866 F.3d
at 917-18 (cleaned up). “Even if any single step is not complicated, repetitive and
coordinated conduct can amount to a sophisticated scheme.” United States v.
Fiorito, 640 F.3d 338, 351 (8th Cir. 2011).
The district court thoroughly discussed Eighth Circuit case law about
sophisticated means. It then made robust factual findings supporting its conclusion
that Theodore used sophisticated means based on “the sheer volume” and “multiple
different ways that fraudulent documents were created.” He used more than 100
forged South Dakota state identification cards, stole social security numbers of at
least 10 people, and created hundreds of fraudulent checks. The scheme lasted
almost eight months, including over 150 transactions at Walmarts in Alabama,
Louisiana, Texas, and Arkansas, and using costumes and a fraudulently obtained
vehicle. The district court did not clearly err in finding that this conduct involved
sophisticated means. See generally United States v. Laws, 819 F.3d 388, 393-94
(8th Cir. 2016) (holding that while tax fraud is not “generally a sophisticated
offense” it became one because of the repetitive conduct, use of multiple bank
accounts, and concealment of victims).

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II.
Theodore believes the district court erred in calculating the guidelines based
on the loss amount. This court reviews de novo the interpretation of loss under the
guidelines, and the loss calculation for clear error. United States v. Killen, 761 F.3d
945, 948 (8th Cir. 2014). But when, as here, the defendant “failed to object at
sentencing to the district court’s loss calculation,” this court reviews for plain error.
United States v. Callaway, 762 F.3d 754, 759 (8th Cir. 2014). “Under plain error
review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects
substantial rights.” United States v. Isler, 983 F.3d 335, 341 (8th Cir. 2020). “If
these three requirements are satisfied,” this court may correct the error only if “it
seriously affects the fairness, integrity or public reputation of judicial proceedings.”
United States v. Helper, 7 F.4th 706, 711 (8th Cir. 2021).
Under § 2B1.1(b)(1), “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1, cmt. n.3(A). Intended loss “means the pecuniary harm that the
defendant purposely sought to inflict” even if it “would have been impossible or
unlikely to occur.” U.S.S.G. § 2B1.1 cmt. n.3(A)(ii). The government must prove
facts necessary to establish a sentencing enhancement by a preponderance of the
evidence. United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008). The
district court “may accept any undisputed portion of the PSR as a finding of fact.”
Id. (cleaned up) (quoting Fed. R. Crim. P. 32(i)(3)(A)).
Theodore contends the government failed to establish the intended loss by a
preponderance of the evidence. Here, the district court determined without objection
that the loss amount pursuant to U.S.S.G. § 2B1.1(a)(1) was more than $150,000 but
less than $250,000, resulting in a 10-level enhancement. The court determined this
number from the PSR’s assessment of an intended loss of $134,542.69 in forged
checks and an actual loss of $19,222. Theodore did not contest the parts of the PSR
finding him responsible for the forged checks or the actual loss, and the district court
properly relied on the PSR for those amounts. See United States v. Lee, 570 F.3d
979, 982 (8th Cir. 2009) (“the district court is entitled to rely on facts in the PSR

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when the defendant objects not to the facts themselves but to the PSR’s
recommendation based on those facts” (cleaned up)). The court did not plainly err
in determining the loss amount.
III.
Theodore asserts the district court erred in imposing a within-guidelines
sentence of 70 months (range was 63 to 78 months) because it did not properly
consider the mitigating factors warranting a downward variance. This court reviews
for abuse of discretion. United States v. Edwards, 820 F.3d 362, 366 (8th Cir. 2016).
The district court considered the 18 U.S.C. § 3553(a) factors and explained its
reasoning. It discussed the mitigating factors—his struggles with addiction,
disproportionate amount between intended loss and actual loss, and acceptance of
responsibility—but it weighed them against the aggravating factors—planning
involved, length of time, geographic scope, and coordination. The court did not
abuse its discretion.
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The judgment is affirmed.
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