United States of America v. Myisha Ayana Green

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10944
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MYISHA AYANA GREEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:22-cr-00096-AMM-GMB-1
____________________
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2 Opinion of the Court 23-10944
Before WILSON, ROSENBAUM , and L UCK , Circuit Judges.
PER CURIAM:
Myisha Green appeals her 94-month prison sentence, arising
from a fraudulent check-cashing conspiracy. She argues that the
district court erred in applying a four-level enhancement for her ag-
gravating role as an organizer or leader of the conspiracy. See
U.S.S.G. § 3B1.1(a). After careful review, we affirm.
I.
Green pled guilty to conspiracy to commit wire fraud, see 18
U.S.C. §§ 1343 & 1349, aggravated identify theft, see 18 U.S.C.
§ 1028A, and possession of a firearm by a convicted felon, see 18
U.S.C. § 922(g)(1). Her plea agreement with the government in-
cluded a stipulated factual basis, which was included nearly verba-
tim in the presentence investigation report (“PSR”).
According to undisputed facts in the PSR, Green conspired
with others, including her codefendant and boyfriend John Lee
Neal, to produce fraudulent checks between May 2020 and May
2021. The scheme involved the production of at least 115 fraudu-
lent checks made out to at least 25 different individuals. Green al-
tered genuine checks she obtained from others—changing the
payee and amount, and sometimes adding her personal phone
number so as to field potential inquiries and forestall detection—
and recruited “runners” to cash the forged checks. The runners, in
turn, provided the driver’s licenses of other individuals who were
willing to pass checks, and Green used that information to produce
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23-10944 Opinion of the Court 3
additional forgeries. Green’s phone contained over 70 pictures of
driver’s licenses, as well as web history reflecting searches relating
to cashing checks without raising suspicion, and her computer con-
tained digital images of business logos, headshots, and handwritten
cursive signatures.
Green’s codefendant Neal was the named payee on eleven
checks Green forged. Notably, in October 2020, Neal used fake cre-
dentials and a forged cashier’s check in the amount of $35,688.96
to purchase a Jeep Wrangler at a dealership. Then, in March 2021,
Neal attempted to cash a forged check at two banks using fake cre-
dentials. On both occasions, Neal communicated with and re-
ceived instructions from Green before or during the attempted
swindle. Green later obtained insurance for the Jeep.
The PSR calculated Green’s guideline imprisonment range
as 70 to 87 months for the conspiracy and felon-in-possession of-
fenses, plus a consecutive 24 months for the identity-theft offense.
Green received a four-level upward adjustment under U.S.S.G.
§ 3B1.1(a) for serving as an “organizer or leader” of the conspiracy.
That adjustment was warranted, according to the PSR, because
“Green was the person who orchestrated the activities of the other
participants by developing the fraudulent check scheme, producing
the forged checks, and instructing others, including Neal, how to
carry out the necessary criminal acts. She also recruited runners
and instructed them in the criminal activity.” Green objected that
she was not an “organizer” or “leader” under § 3B1.1 and its
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4 Opinion of the Court 23-10944
commentary, and that another individual was the true leader of the
conspiracy.
The district court heard argument on the objection at sen-
tencing. Green argued that her role was mischaracterized, that the
group was very loosely organized, and that the text messages be-
tween Green and Neal were not sufficient to substantiate the claim
that she was a leader or organizer. The court concluded that a pre-
ponderance of the evidence, “particularly about the relationship to
Mr. Neal,” supported the organizer-or-leader adjustment. Accord-
ingly, the court overruled the objection and sentenced Green to a
low-end guideline sentence of 94 months. Green appeals.
II.
A defendant’s role as an organizer or leader under U.S.S.G.
§ 3B1.1 is a “factual finding that we review for clear error.” United
States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). The district
court’s factual findings for sentencing matters may be based on,
among other things, undisputed statements in the PSR. United
States v. Smith, 480 F.3d 1277, 1280 (11th Cir. 2007). In reviewing for
clear error, we will reverse only if we are “left with the definite and
firm conviction that a mistake has been committed” and not
“simply because we would have decided the case differently.” Ea-
sley v. Cromartie, 532 U.S. 234, 242 (2001) (quotation marks omitted).
A defendant who “was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive” is subject to a four-level guideline enhancement.
U.S.S.G. § 3B1.1(a). The government bears the burden of proving
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23-10944 Opinion of the Court 5
an aggravating role under § 3B1.1 by a preponderance of the evi-
dence. United States v. Shabazz, 887 F.3d 1204, 1221 (11th Cir. 2018).
In assessing a defendant’s relative responsibility in the of-
fense, courts should consider factors including the following:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the de-
gree of control and authority exercised over others.
U.S.S.G. § 3B1.1(a), cmt. 4; see also United States v. Martinez, 584 F.3d
1022, 1026 (11th Cir. 2009). “In many of the cases where we have
affirmed a finding that a defendant played a leadership or organiza-
tional role under [section] 3B1.1(a), there was evidence that the de-
fendant had recruited participants, had instructed participants, or
had wielded decision-making authority.” Shabazz, 887 F.3d at 1222
(quotation marks omitted).
Here, the district court did not clearly err in finding that
Green was an organizer or leader of the conspiracy under
§ 3B1.1(a). Undisputed facts in the PSR show that Green was the
point person for a fraudulent check-cashing scheme involving at
least 115 forged checks and “dozens” of runners, some of whom
she recruited. She forged the checks cashed by the runners. She
received and maintained information, such as drivers’ licenses,
business logos, headshots, and signatures, which could be used
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6 Opinion of the Court 23-10944
either to generate fake checks or fake drivers’ licenses. She re-
searched businesses where the runners could cash the checks with-
out triggering suspicion. She also instructed and monitored an-
other participant, Neal, on at least two occasions when he at-
tempted to cash a forged check. Based on these undisputed facts,
which support a view of Green’s central role in the scheme, we are
not left with a definite and firm conviction that the district court
made a mistake in applying the § 3B1.1 enhancement. See Easley,
532 U.S. at 242.
Green argues that the government “failed to provide suffi-
cient evidence to support a preponderance of the evidence finding
as to all 7” of the factors listed in the commentary. But “[t]here is
no requirement that all of the considerations have to be present in
any one case. Instead, these factors are merely considerations for
the sentencing judge.” United States v. Martinez, 584 F.3d 1022, 1026
(11th Cir. 2009) (quotation marks omitted). While Green also iden-
tified another individual as the true leader or organizer, “[t]here
can, of course, be more than one person who qualifies as a leader
or organizer of a criminal association or conspiracy.” U.S.S.G.
§ 3B1.1, cmt. n.4.
For these reasons, Green has not shown that the district
court erred in applying U.S.S.G. § 3B1.1(a) when calculating her
guideline range. We affirm her sentence.
AFFIRMED.
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