USA v. Terri Lynn Hankerson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10750
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRI LYNN HANKERSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cr-60227-JIC-1
____________________
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2 Opinion of the Court 23-10750
Before W ILSON , BRANCH, and L UCK , Circuit Judges.
PER CURIAM:
Terri Lynn Hankerson appeals her conviction for one count
of theft of government funds and her sentence of five months’
imprisonment followed by three years’ supervised release with the
first five months of supervised release to be served on home
confinement. She makes two arguments on appeal. First, she
argues that the district court erred by giving the jury a deliberate
ignorance instruction because the evidence pointed to a lack of
actual knowledge. Second, she argues that the district court erred
when it declined to sentence her to probation instead of
imprisonment, arguing that the court constrained itself incorrectly
to the guidelines commentary. After review, we affirm.
I . Background
On October 25, 2022, a grand jury indicted Hankerson on
one count of theft of government funds, in violation of 18 U.S.C.
§ 641. Hankerson pleaded not guilty, and the case proceeded to
trial.
Hankerson’s father, Tommie Hankerson (“Tommie”)
received Social Security retirement benefits via direct deposits
between June of 1991 and February of 2020. In 2020, the SSA
noticed that Tommie was receiving Social Security benefits but not
using his Medicare benefits. It notified Dominick Stokes, an
Assistant Special Agent with the SSA Office of the Inspector
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23-10750 Opinion of the Court 3
General.1 Stokes ordered a copy of Tommie’s death certificate and
determined that Tommie had died in June of 2016. Despite having
died in June of 2016, Tommie continued to receive Social Security
deposits into his bank account through February 2020. By the time
the SSA caught the issue, Tommie’s account had been overpaid by
$48,328.
Testimony revealed that Hankerson, aged 58 at the time of
her trial, was fairly involved with Tommie’s finances. Hankerson
and her sister lived with their parents and managed their parents’
finances. Hankerson was added as a joint account holder on
Tommie’s bank account in 2014,2 and she received a debit card for
that account in 2015. She was the only person with access to the
account.
The government introduced bank statements showing
consistent cash withdrawals and purchases from the account after
1 Alana Oliver, an employee with the Social Security Administration (“SSA”),
testified to the following. The SSA typically learns of a beneficiary’s death via
state records or from reports from family members. But these methods are
not always reliable. Sometimes the SSA is suspicious that a beneficiary has
died, and so it conducts its own investigation. One situation that triggers such
an investigation is when a beneficiary is still receiving SSA payments but not
using his or her Medicare benefits. The SSA will try to track the beneficiary
down by mailing and calling the beneficiary. And if the SSA suspects that
someone other than the beneficiary is receiving the benefits, the SSA will refer
the case to the Office of Inspector General.
2 Tommie’s wife, Gwendolyn Hankerson (“Gwendolyn”) was also on the
account, and Tommie’s son, Charles Holiday, was listed as a beneficiary.
Gwendolyn passed away in February of 2014.
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4 Opinion of the Court 23-10750
Tommie’s death. For example, there were withdrawals by a
Sunpass account, deposits made for a cruise, and purchases for a
Miami Heat game and concert tickets, all in Hankerson’s name.
There were also direct deposits from Hankerson’s place of
employment into the account until February of 2017.
When Agent Stokes interviewed Hankerson, Hankerson
confirmed that her father had died and that she was affiliated with
his bank account. Hankerson stated that she had used her father’s
Social Security money to pay for his funeral expenses. Agent
Stokes then asked her whether she had used the funds to make any
other purchases in her name. Agent Stokes testified that, in
response to his question, Hankerson began to cry, and admitted
that she had made other purchases too. She then apologized and
told Agent Stokes that “she knew she shouldn’t have done this, she
went to law school, [and] she knew better.” She said that she would
help pay it back.
After the government rested, Hankerson testified to the
following. After her father died, she went to the SSA with a copy
of his death certificate. Her parents had told her that she and her
siblings would inherit their parents’ retirement savings in the bank
account in question. She was made a joint owner of the bank
account at some point in the early 2000s. She knew her father
received “retirement annuities, pension [payments,] and SSA
benefits.” While she initially denied looking at her father’s bank
account statements while he was alive, she later admitted that she
looked at the statements when her father was alive as part of her
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23-10750 Opinion of the Court 5
efforts to manage his finances when he could no longer do so. But
she did not view the account statements after he passed away.
Instead, she kept track of the balance of the account by visiting
ATMs and checking the balance. In July of 2016, when she visited
an ATM, she noted that there was less money in the account, which
she believed was because the Social Security payments stopped.
Between July 2016 and February 2020, she thought the deposits
coming into the account were from her father’s retirement. She
first realized there was an issue with the Social Security benefits
when Agent Stokes came to her home to interview her in 2021.
Hankerson explained that she did not intend to steal and did not
know that the money came from the SSA.
At the close of evidence, the government asked for a
deliberate ignorance instruction.3 Hankerson objected, arguing
that the evidence did not show that she affirmatively attempted to
avoid learning about the source of the money. The district court
overruled Hankerson’s objection. It explained that Hankerson had
looked at her father’s bank account statements before her father’s
death, but then stopped suddenly once he died. The court also
characterized Hankerson’s failure to look at the bank statements a
single time over the course of four years as “somewhat
incredulous.” The court then issued the following instruction:
3 The government also asked for a deliberate ignorance instruction during a
preliminary charge conference after the government rested, but the court
denied the request. It stated that, at that point, there had only been evidence
supporting actual knowledge rather than a course of avoidance.
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6 Opinion of the Court 23-10750
Deliberate avoidance of positive [knowledge], which
is the equivalent of knowledge, occurs, for example,
if a defendant possesses a package and believes it
contains a controlled substance, but deliberately
avoids learning that it contains the controlled
substance so he or she can deny knowledge of the
package’s contents. So you may find a defendant
knew about the possession of a controlled substance,
if you determine beyond a reasonable doubt,
Number one, that the defendant actually knew about
the controlled substance, or Number two, the
defendant had every reason to know, but deliberately
closed her eyes. But I must emphasize that
negligence, carelessness[,] or foolishness is not
enough to prove that the defendant knew about the
possession of the controlled substance.
The jury returned a guilty verdict as to Count 1. Based on a
total offense level of 12 and a criminal history category of I,
Hankerson’s guideline imprisonment range was 10 to 16 months.
The combination of her total offense level and criminal history
category also placed Hankerson in Zone C of the Sentencing Table.
U.S.S.G. § 5(A). The United States Probation Office explained that
because her guideline range was in Zone C of the Sentencing
Table, Hankerson’s minimum term could be satisfied by “(1) a
sentence of imprisonment; or (2) a sentence of imprisonment that
includes a term of supervised release with a condition that
substitutes community confinement or home detention according
to the schedule in subsection (e) [of U.S.S.G. § 5C1.1], provided that
at least one-half of the minimum term is satisfied by
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23-10750 Opinion of the Court 7
imprisonment, § 5C1.1(d).” Additionally, the probation office
explained that, although Hankerson was statutorily “eligible for a
term of not less than one nor more than five years’ probation”
under 18 U.S.C. § 3561(c)(1), because the guideline range was in
Zone C of the Sentencing Table, she was ineligible for probation
under the guidelines, citing U.S.S.G. § 5B1.1, comment n.2.
At the sentencing hearing, neither party objected to the PSI.
The government recommended a sentence at the low end of the
guidelines. It requested 10 months, which included five months of
imprisonment, followed by five months in a halfway house, two
years of supervised release, restitution, and a forfeiture order. It
argued that the nature and circumstances of the offense,
Hankerson’s characteristics, general deterrence, respect for the law
and just punishment, the seriousness of the offense, and avoidance
of sentencing disparities among other defendants supported its
recommendation.
Hankerson requested a non-imprisonment sentence. She
argued that she had a clean record before this incident and she had
already been punished by losing her job with the state, pension, and
state benefits, and that it would cost thousands of dollars to
incarcerate her, and incarceration would prevent her from paying
the government back. She then allocuted and apologized for her
actions, requesting a probationary sentence so she could work to
pay back the government.
The court adopted the PSI’s calculations and determined
that Hankerson was not eligible for probation. The court
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8 Opinion of the Court 23-10750
considered the statements of all parties, the PSI, the guidelines, and
the 18 U.S.C. § 3553(a) factors. The court characterized
Hankerson’s actions as “inexplicable,” and noted that the
explanation she provided on the witness stand was “incredulous.”
The court also emphasized the importance of deterrence in this
case, stating that sentences in cases like this “should tell the public
that if you steal government funds, particularly taxpayer funds, that
there’s punishment attached, punishment sufficient to deter other
people from committing a similar crime.” The court then imposed
the government’s proposed sentence of five months’
imprisonment, followed by five months’ home confinement and
three years’ supervised release. The court also ordered Hankerson
to pay $48,328 in restitution. Hankerson did not object to the
sentence or manner in which it was imposed. She requested bond
pending appeal, which was denied. After entry of final judgment,
Hankerson appealed.
II. DISCUSSION
Hankerson argues that the district court erred by giving a
deliberate ignorance jury instruction. She also contends that the
district court erred when it declined to sentence her to probation,
arguing that the court incorrectly constrained itself to the
guidelines commentary. We address each argument in turn.
A. Deliberate Ignorance Instruction
Hankerson argues that the district court erred in providing
a deliberate ignorance instruction to the jury, because the evidence
pointed to only a lack of actual knowledge and there was no
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23-10750 Opinion of the Court 9
evidence that she deliberately avoided learning the source of the
money.
A challenge to a deliberate ignorance instruction is re-
viewed de novo. United States v. Stone, 9 F.3d 934, 937 (11th Cir.
1993). The district court has broad discretion to formulate its jury
charge as long as the charge as a whole accurately reflects the law
and facts. United States v. Williams, 526 F.3d 1312, 1320 (11th Cir.
2008). We will not reverse a “conviction based on a challenge to
the jury charge unless we are left with a substantial and
ineradicable doubt as to whether the jury was properly guided in
its deliberations.” United States v. Gibson, 708 F.3d 1256, 1275 (11th
Cir. 2013) (quotations omitted); see also United States v. Isnadin, 742
F.3d 1278, 1296 (11th Cir. 2014) (“We will not reverse a conviction
because of a jury charge unless the issues of law were presented
inaccurately, or the charge improperly guided the jury in such a
substantial way as to violate due process.” (quotations omitted)).
In determining whether there is sufficient evidence to
support a jury charge, “we review the evidence in the light most
favorable to the government.” United States v. Calhoon, 97 F.3d 518,
533 (11th Cir. 1996). The defendant’s own testimony can be used
as the basis for finding that a deliberate ignorance instruction is
warranted. See id. Further, when a defendant chooses to testify,
the defendant’s own testimony may be treated as non-credible and
substantive evidence of his guilt. United States v. Williams, 390 F.3d
1319, 1325 (11th Cir. 2004).
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10 Opinion of the Court 23-10750
We recognize deliberate ignorance as an alternative to an
actual knowledge requirement that applies when a defendant is
suspicious of the situation but does not make further inquiries so
as to remain ignorant. United States v. Hristov, 466 F.3d 949, 952
(11th Cir. 2006). Therefore, if “the facts support the inference that
the defendant was aware of a high probability of the existence of
the fact in question and purposely contrived to avoid learning all of
the facts in order to have a defense in the event of a subsequent
prosecution,” then the deliberate ignorance instruction is
appropriate. United States v. Garcia-Bercovich, 582 F.3d 1234, 1237–
38 (11th Cir. 2009) (quotations omitted). “The standard is the same
whether the evidence is direct or circumstantial.” United States v.
Arias, 984 F.2d 1139, 1143 (11th Cir. 1993) (quotations omitted). On
the other hand, district courts err in giving the deliberate ignorance
instruction when there is relevant evidence of only actual
knowledge rather than deliberate avoidance. United States v. Steed,
548 F.3d 961, 977 (11th Cir. 2008).
Here, the deliberate ignorance instruction was proper.
Hankerson testified that she checked the statements on her father’s
account while he was alive. And she knew that her father was
receiving money from the SSA before his death. But Hankerson
immediately stopped checking the statements on the account after
her father’s death, despite making ongoing extensive expenditures
from the account. Viewing the evidence in the light most favorable
to the government, there is at least circumstantial evidence that
supported an inference that Hankerson was deliberately ignorant
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23-10750 Opinion of the Court 11
of receiving funds that she was not entitled to.4 See Calhoon, 97 F.3d
at 533; Arias, 984 F.2d at 1143.
B. Sentence
Hankerson also argues, for the first time on appeal, that the
district court erred by imposing a sentence of imprisonment and
determining that she was ineligible for probation because it was
improperly constrained by the guidelines commentary. She argues
that 18 U.S.C. § 3561(a) and the Sentencing Guidelines clearly
permit probation in her case (which allegedly is supported by the
§ 3553(a) factors), and the guidelines commentary cannot expand
the interpretation of that unambiguous language. Thus, she
argues that we should reverse and remand for resentencing to
include probation as an option.
We generally review the procedural reasonableness of a
sentence under a deferential abuse-of-discretion standard of review.
Gall v. United States, 552 U.S. 38, 51 (2007). However, when, as here,
a defendant does not raise a relevant objection at the time of
sentencing, we review for plain error. United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014). To establish plain error, the
defendant must show: (1) an error occurred; (2) the error was plain;
and (3) the error affected her substantial rights. Id. If these three
conditions are met, we may then exercise our discretion to correct
4 The government also argues that any error in giving the instruction was
harmless, because a reasonable jury could have convicted her on a theory of
actual knowledge. Because we find that the district court did not err in
providing the instruction, we need not reach this argument.
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12 Opinion of the Court 23-10750
the error if, but only if, (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
With respect to the second prong, “[w]hen the explicit
language of a statute or rule does not specifically resolve an issue,
there can be no plain error where there is [no] precedent from the
Supreme Court or this Court directly resolving it.” United States v.
Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotations omitted).
With respect to the third prong, an error does not affect a
defendant’s substantial rights unless there is a “reasonable
probability” of a different sentence absent the error. United States
v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). The substantial
rights analysis is like harmless error review, but the defendant, not
the government, “bears the burden of persuasion with respect to
prejudice.” See United States v. Monroe, 353 F.3d 1346, 1352 n.10
(11th Cir. 2003). Thus, “if the effect of the error is uncertain so
that we do not know which, if either, side it helped the defendant
loses.” Rodriguez, 398 F.3d at 1300. The district court commits a
significant procedural error if it calculates the guidelines
incorrectly, fails to consider the § 3553(a) factors, bases the sentence
on clearly erroneous facts, neglects to explain the sentence, or
treats the guidelines as mandatory rather than advisory. United
States v. Hill, 643 F.3d 807, 879 (11th Cir. 2011).
Section 3561 of Title 18 of the United States Code provides
that a “defendant who has been found guilty of an offense may be
sentenced to a term of probation unless[, among other factors,] . . .
the offense is a Class A or Class B felony . . . .” The guidelines
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23-10750 Opinion of the Court 13
incorporate the same statutory restrictions on probation identified
in § 3561. See U.S.S.G. § 5B1.1(b). Hankerson’s offense was a Class
C felony. So, the probation references in 18 U.S.C. § 3561 and the
guidelines did not apply.
However, the class of felony is not the only factor in
determining whether an individual is eligible for probation. The
guidelines only authorize probation for guideline ranges within
certain zones of the Sentencing Table. Hankerson’s guideline
range was in Zone C of the Sentencing Table. The guidelines
authorize a sentence of probation if:
(1) the applicable guideline range is in Zone A of the
Sentencing Table; or
(2) the applicable guideline range is in Zone B of the
Sentencing Table and the court imposes a
condition or combination of conditions requiring
intermittent confinement, community
confinement, or home detention as provided in
subsection (c)(3) of § 5C1.1 (Imposition of a Term
of Imprisonment).
U.S.S.G. § 5B1.1(a). The text of this provision does not mention
Zone C or D of the Sentencing Table. Comment 2 to § 5B1.1(a)
states that “[w]here the applicable guideline range is in Zone C or
D of the Sentencing Table . . . the guidelines do not authorize a
sentence of probation.” U.S.S.G. § 5B1.1 cmt. (n.2). And we have
cited to this comment, stating that the “Guidelines do not
authorize a sentence of probation where the applicable Guidelines
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14 Opinion of the Court 23-10750
range is in Zone C or D of the Sentencing Table.” United States v.
Pugh, 515 F.3d 1179, 1200 (11th Cir. 2008).5
Hankerson argues that she was eligible for a probationary
sentence under 18 U.S.C. § 3561 and the plain language of the
guidelines, and that the commentary to the guidelines suggesting
otherwise is not controlling. She cites United States v. Dupree, in
which we held that the guidelines commentary cannot expand the
interpretation of unambiguous sentencing guidelines. 57 F.4th
1269, 1273–77 (11th Cir. 2023) (en banc).
But her reliance on that decision is misplaced. The
guidelines do not unambiguously state that probation is allowed
for Class C felonies where the applicable guidelines range is in Zone
C or D. While the guidelines do not expressly prohibit probation
for Class C felonies, the guidelines only authorize probation when
the applicable guideline range is in Zone A or B. The guidelines’
express authorization of probation for Zone A and Zone B ranges
and its silence as to ranges in Zone C implies the lack of
authorization of probation for Zone C ranges. See United States v.
Curbelo, 726 F.3d 1260, 1277 (11th Cir. 2013) (The negative
implication canon “applies where items expressed are members of
an associated group or series, justifying the inference that items not
5 This implication is further supported by § 5C1.1 of the guidelines, which
states that a minimum term of imprisonment may be satisfied by probation
for Zone B. But here as well, probation is not listed for Zones C and D.
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mentioned were excluded by deliberate choice, not inadvertence.”
(quotations omitted)).
Because the sentencing guidelines do not unambiguously
state that probation is authorized for guideline ranges in Zone C or
D, it is permissible to consider the guidelines commentary. Dupree,
57 F.4th at 1273–77. That commentary, and our caselaw
interpreting that commentary, makes clear that the guidelines do
not authorize a sentence of probation where the applicable
guidelines range is in Zone C or D. See Pugh, 515 F.3d at 1200; §
5B1.1 cmt. n.2 (“Where the applicable guideline range is in Zone C
or D of the Sentencing Table . . . the guidelines do not authorize a
sentence of probation.”). Thus, because Hankerson’s applicable
Guidelines range was in Zone C, it was not plain error for the
district court to determine that she was ineligible for probation.
Regardless, the record does not indicate that the district
court treated the guidelines as mandatory rather than advisory.
Hill, 643 F.3d at 879 (noting that a district court commits procedural
error when it treats the guidelines as mandatory). The district
court stated that it considered the statements of all parties, the §
3553(a) sentencing factors, the “advisory guidelines,” and the PSI.
Moreover, the record supports the district court’s decision to
sentence her to both incarceration and home confinement, in lieu
of probation. Accordingly, the district court did not err, and we
affirm the district court.
AFFIRMED.
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