USA v. Brian Keith Morrow

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14056
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN KEITH MORROW,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20057-CMA-1
____________________
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2 Opinion of the Court 21-14056
Before R OSENBAUM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
After a jury trial, Brian Morrow was convicted of one count
of knowingly using one or more unauthorized access devices with
intent to defraud,
see 18 U.S.C. § 1029(a)(2), and sentenced to 41
months of imprisonment. The trial evidence showed that Morrow
used four debit cards issued in the names of others to withdraw
funds that were deposited from fraudulent unemployment claims.
At sentencing, the district court calculated an intended loss of
$284,739, using the maximum payable benefit amount for each of
the fifty-six fraudulent unemployment claims that had been config-
ured to send payments to the four debit cards. On appeal, Morrow
contends that the court’s loss determination was pure speculation
and that the amount was closer to $26,000. He also argues that his
sentence was unduly harsh because he was a first-time offender.
After careful review, we affirm.
I.
We review for clear error the district court’s determination
of the amount of loss attributable to a defendant.
United States v.
Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). To hold that a factual
finding is clearly erroneous, we must be convinced that the court
made a mistake.
United States v. Chalker, 966 F.3d 1177, 1194 (11th
Cir. 2020). A loss finding based on a reasonable construction of the
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21-14056 Opinion of the Court 3
evidence is not clearly erroneous.
United States v. Almedina, 686
F.3d 1312, 1315 (11th Cir. 2012).
The guideline for fraud offenses, U.S.S.G. § 2B1.1, calls for
an increase in the offense level of up to 30 levels based on the extent
of loss.
See U.S.S.G. § 2B1.1(b)(1). Loss is defined as “the greater
of actual loss or intended loss.”
Id. § 2B1.1, cmt. n.3(A). Actual loss
is “the reasonably foreseeable pecuniary harm that resulted from
the offense.”
Id., cmt. n.3(A)(i). Intended loss is “pecuniary harm
that the defendant purposely sought to inflict,” including “intended
pecuniary harm that would have been impossible or unlikely to oc-
cur.”
Id., cmt. n.3(A)(ii). The guidelines do not require a precise
determination of loss, and the sentencing court may make a rea-
sonable estimate.
Id., cmt. n.3(C).
When the loss amount is disputed, the government has the
burden of proving by a preponderance of the evidence the losses
attributable to the defendant.
Cavallo, 790 F.3d at 1232. It must
meet that burden with reliable and specific evidence, which can in-
clude evidence at trial, undisputed statements in the presentence
investigation report, or evidence presented at sentencing.
United
States v. Baldwin, 774 F.3d 711, 727 (11th Cir. 2014);
United States
v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011). While the district
court may make a reasonable estimate of loss, and may make infer-
ences based on circumstantial evidence, it “must not speculate con-
cerning the existence of a fact which would permit a more severe
sentence under the guidelines.”
Bradley, 644 F.3d at 1290 (quota-
tion marks omitted).
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4 Opinion of the Court 21-14056
Here, the district court did not clearly err in determining a
loss amount of $284,739 at sentencing, which triggered a 12-level
increase to the offense level.
See U.S.S.G. § 2B1.1(b)(1)(G). The
evidence presented at trial and at sentencing established that Mor-
row used four debit cards issued in the names of victims of identity
theft to withdraw fraudulently obtained unemployment benefits.
The cards were used for a total of $26,000 in withdrawals or at-
tempted withdrawals. Surveillance footage recovered of the with-
drawals showed Morrow, and only Morrow, withdrawing a total
of about $2,000 using the four debit cards on various occasions at
ATMs between November 2018 and March 2019. A total of fifty-
six fraudulent unemployment claims were configured to funnel
benefits to the accounts connected to the four debit cards used by
Morrow. The maximum total amount payable by South Carolina
on the fifty-six claims was $284,739, according to the formula used
by the state to calculate unemployment benefits for each claim.
Viewed as a whole, these facts reasonably support the district
court’s finding that the intended loss of Morrow’s conduct was
more than $250,000.
Morrow’s arguments to the contrary miss the mark. The
district court properly used the maximum payable benefits for each
claim to measure intended loss in this case, even if Morrow re-
ceived much less than that amount. Indeed, we have explained
that “when a sentencing court is determining the proper punish-
ment for a defendant’s fraud, the court uses the reasonable
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21-14056 Opinion of the Court 5
mathematical limit of his scheme, rather than his concrete result.”
United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
Nor was the court limited to calculating one fraudulent
claim per debit card, as Morrow suggests, when the evidence es-
tablished that a total of fifty-six fraudulent claims were being fun-
neled to those four cards. That Morrow may not have known the
precise number of fraudulent claims attached to each card does not
prevent holding him accountable for those claims based on his
knowing use of the unauthorized debit cards with intent to de-
fraud.
Cf. U.S.S.G. § 1B1.3, cmt. n.4(A) (“[A] defendant who trans-
ports a suitcase knowing that it contains a controlled substance . . .
is accountable for the controlled substance in the suitcase regard-
less of his knowledge or lack of knowledge of the actual type or
amount of that controlled substance.”).
Morrow also asserts that the government presented “no ev-
idence” to show how it arrived at the $284,739 figure and that the
amount was “pure speculation.” We disagree. Special Agent Will
Tippens of the Department of Labor’s Office of Inspector General
testified at the sentencing hearing about the calculation of the ap-
proximately $284,739 figure. He explained that South Carolina
pays unemployment benefits for a maximum of 20 weeks per year,
with weekly benefit maximums and minimums of $326 and $42,
respectively. So according to Tippens, the maximum payable ben-
efit for each claim is the product of the weekly benefit amount,
times 20 weeks, which is the total amount of money “that would
have been available had the State not stopped it.” Tippens further
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6 Opinion of the Court 21-14056
stated that the formula used to derive the weekly benefit amount
is “certified by law” and based on prior wages, and that the state of
South Carolina provided the maximum benefit for each of the
claims based on that formula.1
While Tippens did not receive or review the state’s underly-
ing calculations, Morrow offers no reason to doubt that the state
accurately calculated the weekly benefits for each claim or that Tip-
pens accurately compiled those figures. Nor does Morrow take is-
sue with any specific aspect of Tippens’s testimony. So despite the
lack of precise calculations in the record, we cannot say that the
district court clearly made a mistake in concluding that sufficient
evidence supported a finding that the intended loss exceeded
$250,000. We therefore affirm the court’s loss determination.
II.
We review the substantive reasonableness of a sentence un-
der a deferential abuse-of-discretion standard, considering whether
the statutory factors in 18 U.S.C. § 3553(a) support the sentence
under the totality of the circumstances.
United States v. Nagel, 835
F.3d 1371, 1376 (11th Cir. 2016);
United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008).
1 We note that the state plainly did not use the absolute maximum of $326 per
week for each claim, which would have resulted in a total loss of approxi-
mately $365,000.
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21-14056 Opinion of the Court 7
The district court must impose “a sentence sufficient, but
not greater than necessary, to comply with the purposes” listed in
18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness
of the crime, promote respect for the law, provide just punishment,
deter criminal conduct, and protect the public. 18 U.S.C.
§ 3553(a)(2)(A)–(C). The weight to be given the § 3553(a) factors is
generally committed to the court’s discretion, and “we will not re-
weigh the factors.”
United States v. Johnson, 803 F.3d 610, 620
(11th Cir. 2015). Ordinarily, we will vacate a sentence only if the
party challenging it convinces us that, despite the “substantial def-
erence” afforded sentencing courts, the sentence lies outside the
range of reasonable sentences dictated by the facts of the case.
United States v. Irey, 612 F.3d 1160, 1190–91 (11th Cir. 2010) (
en
banc);
United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th
Cir. 2015).
Here, Morrow’s sentence is substantively reasonable. The
district court imposed a sentence at the low end of the guideline
range of 41 to 51 months, and we ordinarily expect such a sentence
to be reasonable.
United States v. Stanley, 739 F.3d 633, 656 (11th
Cir. 2014). Nothing in the record suggests that this case is an ex-
traordinary one where a low-end guideline sentence is unreasona-
ble. The court explained that, in imposing the 41-month sentence,
it had considered Morrow’s history and characteristics as set forth
in the PSR and the sentencing memoranda, the serious nature of
the offense conduct, and the need for the sentence to promote re-
spect for the law and to deter both Morrow and others. Thus, the
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8 Opinion of the Court 21-14056
record shows that the court weighed Morrow’s lack of criminal his-
tory against the serious nature of the offense conduct and other
sentencing needs, and it found that a guideline sentence was appro-
priate. These balancing decisions were squarely within the district
court’s discretion, and Morrow has not shown that the court made
a clear error of judgment.
See Irey, 612 F.3d at 1190–91;
Johnson,
803 F.3d at 620. We affirm his sentence.
AFFIRMED.
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