USA v. Amber Bruey

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12532
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMBER REWIS BRUEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:21-cr-00074-TPB-KCD-1
____________________
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2 Opinion of the Court 22-12532
Before WILSON, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Amber Rewis Bruey appeals her total sentence of 48 months’
imprisonment with 3 years of supervised release and an order of
restitution for conspiracy to commit wire fraud, wire fraud, con-
spiracy to commit money laundering, and illegal monetary trans-
actions. On appeal, Bruey argues that the district court incorrectly
applied the sophisticated laundering enhancement under U.S.S.G.
§ 2S1.1(b)(3) based on facts supporting the sophisticated means en-
hancement under U.S.S.G. § 2B1.1(b)(10)(C). Bruey further argues
that if the district court applied the right standard under
§ 2S1.1(b)(3), it would have concluded that the enhancement did
not apply. For the following reasons, we affirm.
I.
Bruey was charged in an indictment with: one count of con-
spiracy to commit wire fraud in violation of 18 U.S.C. § 1349; ten
counts of wire fraud in violation of 18 U.S.C. §§ 1343, 1349, and 2;
one count of conspiracy to commit money laundering in violation
of 18 U.S.C. § 1956(h); and four counts of illegal monetary transac-
tions in violation of 18 U.S.C. §§ 1957 and 2. Bruey plead guilty to
these counts, and the district court adjudicated her guilty.
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”), which reported the following.
Bruey and her husband, a co-defendant below, (“the Brueys”)
owned and operated different purported businesses. Bruey also
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22-12532 Opinion of the Court 3
individually owned multiple purported businesses. Between 2020
and 2021, the Brueys submitted fraudulent applications for loans
under two programs authorized by the Coronavirus Aid, Relief,
and Economic Security Act (the “CARES Act”). Pub. L. No. 116-
136, 134 Stat. 281 (2020).
First, between April 2, 2020, and February 23, 2021, the
Brueys applied for 15 Economic Injury Disaster Loans (“EIDL”).
Id. § 1110, 134 Stat. at 306. Eleven of these applications had Bruey’s
name on them, and six of the fifteen were ultimately funded for a
total of $763,300. In support of at least four of the eleven applica-
tions, Bruey created false documents to give the impression that
the business and application were legitimate. These documents in-
cluded a fraudulent tax return and a detailed portion of a fraudulent
business lease. She also created false Google business pages, busi-
ness websites to correspond to the Google business information,
and Google reviews by alias accounts which had purported feed-
back and customer photographs. For example, on April 3, 2020,
she submitted a fraudulent EIDL application for one of her pur-
ported businesses in which she falsely claimed that it had $96,228
in gross revenue. She also falsely certified that she had not been on
probation for any criminal offense. The Small Business Admin-
istration (“SBA”) initially declined her application, believing it to be
a duplicate. Bruey filed a request for reconsideration and in sup-
port of her request, she submitted a fraudulent 2019 Schedule C
Form 1040 tax return that listed the business’s gross income as
$232,245. She also created and submitted a fraudulent income
statement that mirrored the information on the false tax return.
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4 Opinion of the Court 22-12532
After Bruey signed a form attesting to the submitted figures, the
SBA approved her application and issued her $113,200.
Second, between April 12, 2020, and June 25, 2020, the
Brueys applied for twelve loans under the Paycheck Protection
Program (“PPP”). Id. § 1102, 134 Stat. at 286 (codified at 15 U.S.C.
§ 636(a)(36)). Ten of these applications had Bruey’s name on them,
and six of the twelve were funded for a total around $118,000. In
support of at least five applications, Bruey again created false doc-
uments to give the impression that her business and application
were legitimate. These fictitious documents were relied upon by
lenders in approving her PPP loans. Bruey also created fraudulent
tax returns for different years claiming business income between
$96,000 and $226,540, and income statements that aligned with the
income claimed on those tax returns. For example, in support of
one application filed on April 12, 2020, Bruey submitted a fraudu-
lent 2019 1099-MISC tax document that reflected her yearly income
as $96,000, and again falsely denied that she had been on probation
within the last five years. She also submitted a fraudulent 2019
Form 1040 Schedule C tax document listing the gross income for
her business as $132,245 with a net profit of $114,883. But records
from the IRS revealed she never filed this tax document. Based on
the information supplied in the fraudulent documents, the lender
approved her loan application and deposited $20,000 in one of
Bruey’s bank accounts.
In all, the Brueys submitted over two dozen fraudulent ap-
plications seeking benefits totaling close to $2 million. Twelve of
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22-12532 Opinion of the Court 5
these applications were approved, and the Brueys received
$880,000 in funds. Bruey misused these funds by, among other
things, satisfying a personal debt and purchasing vehicles and a
home.
After grouping all the counts together for guidelines calcu-
lations purposes, see U.S.S.G. § 3D1.2(d), the PSI calculated a base
offense level of 23 pursuant to U.S.S.G. § 2S1.1(a)(1). The PSI as-
sessed a two-level enhancement under U.S.S.G. § 2S1.1(b)(2)(B) be-
cause Roberts was convicted of an offense under 18 U.S.C. § 1956.
The PSI then assessed another two-level enhancement:
Pursuant to USSG § 2S1.1(b)(3), [i]f subsection
(b)(2)(B) applies; and the offense involved sophisti-
cated means, increase by two levels. In this case, Am-
ber Bruey submitted false and fictious documents, in-
cluding: tax returns, 1099-MISC documents, and in-
come statements, all in support of her applications for
the loans. Amber Bruey also created at least one false
and fictious business website, a two-page detailed
portion of a lease agreement, a Google business page,
and at least one Google review for her business, all to
make her businesses that were subject of the applica-
tions appear legitimate. Considering this, it appears
the offense involved sophisticated means, and a
two-level increase is warranted.
The PSI then decreased the offense level by two because
Bruey demonstrated acceptance of responsibility for the offense,
see U.S.S.G. § 3E1.1(a), and decreased the offense level by one be-
cause Bruey assisted authorities in the prosecution of her own
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6 Opinion of the Court 22-12532
misconduct by timely notifying them of her intention to enter a
guilty plea, see U.S.S.G. § 3E1.1(b). Therefore, her total offense
level was 24. Bruey’s criminal history category was III based on a
criminal history score of four. Therefore, her guidelines range was
63 to 78 months.
In her written objection, Bruey objected to certain intended
loss calculations. Bruey also objected “to the +2 enhancement [as-
sessed] under USSG § 2B1.1(b)(10)(C),” and to the statements in the
PSI that Bruey submitted false or fictitious websites, a false and fic-
titious lease agreement, and a false and fictitious partnership agree-
ment. Bruey argued that “the fraud perpetrated in this matter is
entirely unremarkable and there was no effort—none—to conceal
or disguise the expenditure of criminal proceeds.” Bruey also said
that “this was an entirely unsophisticated fraud followed by con-
spicuous disbursements of the fraudulent proceeds from uncon-
cealed accounts.” Bruey went on to distinguish from other cases
because here (1) there were no false identities, fraudulent accounts,
fictitious entities, corporate shells, or offshore accounts; (2) the
conduct at issue occurred over a short period; and (3) the scheme
was not “especially complex or especially intricate,” because there
was not a great amount of planning or concealment. Instead,
Bruey “submitted false loan applications and fictitious tax docu-
mentation—mere baseline offense conduct in the fraudulent acqui-
sition of financing from a lending institution.”
In response, the PSI cited the “USSG § 2S1.1 (b)(3) commen-
tary,” which “instructs that conduct for which [the enhancement]
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22-12532 Opinion of the Court 7
would apply typically involves the use of fictitious entities, shell
corporations, layering transactions, or offshore financial accounts.”
The PSI then turned to the “multi-faceted” nature of Bruey’s con-
duct, namely the fact that Bruey was both submitting fake docu-
ments to loan providers and creating public pages about her pur-
ported businesses to make them look legitimate. The PSI also
noted that the Brueys opened accounts at different banks that had
no purpose other than to accept the loan proceeds. And the PSI
cited two cases from our sister circuits “which appear[] to have a
similar basis for the sophisticated means enhancement.” See United
States v. Garcia-Pastrana, 584 F.3d 351 (1st Cir. 2009); United States
v. Edelmann, 458 F.3d 791 (8th Cir. 2006).
At her sentencing hearing, Bruey objected to the “sophisti-
cated means enhancement” but not to the factual accuracy of the
PSI. Her counsel sought to distinguish both cases relied on by the
PSI. Counsel argued that creating false Google business pages and
leaving false feedback is simple, fast, and easy, and noted that the
Brueys received funds into accounts with their names on them, un-
like other cases in which defendants used accounts that were not
tied to their identity.
Counsel also sought to distinguish Bruey’s case from past
cases in this circuit, all of which concerned the sophisticated means
enhancement under USSG § 2B1.1(b)(10)(C). See United States v.
Feaster, 798 F.3d 1374 (11th Cir. 2015); United States v. Ghertler, 605
F.3d 1256 (11th Cir. 2010); United States v. Mendez, 420 F. App’x 933
(11th Cir. 2011). Counsel then cited the guidelines commentary for
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8 Opinion of the Court 22-12532
the sophisticated means enhancement, which provides that it ap-
plies to “especially complex or especially intricate offense con-
duct,” § 2B1.1(b)(10)(C) cmt. n.9(B) and contended that Bruey’s
conduct was “neither advanced nor intricate nor out of the ordi-
nary” when compared to cases from this circuit, largely because the
conduct at issue only lasted for a short period and did not involve
false identities, fraudulent accounts, or fictitious entities.
In response, the government outlined what it “believe[d]
was a sophisticated means of carrying out this fraud.” As for PPP
applications, Bruey “manufactured and created . . . fraudulent tax
documents” and “false income statements.” She also “created false
1040s, which included false information about the gross receipts or
sales of each business, including their returns and allowances, costs
of goods sold, [and] gross profits.” As for the EIDL applications,
the government pointed out that Bruey created the Google busi-
ness pages, with falsified reviews from different fake accounts, and
at least one fake website. While, in the government’s eyes, “this
[was not] some Einstein level of sophistication,” the government
believed it “warrant[ed] consideration for whether the sophisti-
cated means enhancement would apply.” Bruey also, the govern-
ment noted, submitted falsified documents to the SBA in response
to an inquiry about an application.
After hearing these arguments, the district court then over-
ruled the objection:
Basically what I’ve heard from the defense is, taking
the totality of this activity, breaking it up into small
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22-12532 Opinion of the Court 9
pieces, and pointing out that it happened over a short
period of time, and, you know, any one or two of
these things I might agree with, but the totality of
what occurred here rises to the level to deserve this
enhancement, so the objection[] is overruled.
After reconvening a few weeks later, the district court sen-
tenced Bruey to 48 months imprisonment, below the guidelines
range of 63 to 78 months, with three years of supervised release on
each count to be served concurrently. The district court also im-
posed restitution in the amount of $881,659, which Bruey owes
jointly and severally with her husband. Bruey again objected to the
“sentence enhancement for sophisticated means,” disagreeing with
the district court’s decision to “impose[] the additional two levels
for sophisticated means.” Bruey then objected to the procedural
and substantive reasonableness of the sentence.
This appeal followed.
II.
We review a district court’s interpretation and application
of the Guidelines de novo. United States v. Jayyousi, 657 F.3d 1085,
1114 (11th Cir. 2011). We review a district court’s finding that the
defendant used sophisticated means, a finding of fact, for clear er-
ror. United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011).
“Under this standard, we will not disturb a district court’s findings
‘unless we are left with a definite and firm conviction that a mistake
has been committed.’” United States v. Clarke, 562 F.3d 1158, 1165
(11th Cir. 2009) (quoting United States v. Crawford, 407 F.3d 1174,
1177 (11th Cir. 2005)). “So long as the basis of the trial court’s
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10 Opinion of the Court 22-12532
decision is supported by the record and does not involve a misap-
plication of a rule of law,” we will rarely conclude that the district
court clearly erred. United States v. Rodriguez De Varon, 175 F.3d
930, 945 (11th Cir. 1999).
If a defendant, however, “induces or invites the district court
into making an error,” United States v. Stone, 139 F.3d 822, 838 (11th
Cir.1998), then we do not reach the merits of her argument on ap-
peal. See United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It
is ‘a cardinal rule of appellate review that a party may not challenge
as error a ruling or other trial proceeding invited by that party.’”)
(quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir.
1985))). This “doctrine stems from the common sense view that
where a party invites the trial court to commit error, [she] cannot
later cry foul on appeal.” United States v. Brannan, 562 F.3d 1300,
1306 (11th Cir. 2009).
III.
While both provide for a two-level increase, the enhance-
ments found in § 2B1.1(b)(10)(C) and § 2S1.1(b)(3) apply to differ-
ent conduct. The enhancement found in § 2B1.1(b)(10)(C) applies
when a fraudulent scheme “involved sophisticated means and the
defendant intentionally engaged in or caused the conduct consti-
tuting sophisticated means.” The commentary to the guidelines
defines “sophisticated means” as “especially complex or especially
intricate offense conduct pertaining to the execution or conceal-
ment of an offense.” U.S.S.G. § 2B.1 cmt. n.9(B). “Conduct such
as hiding assets or transactions, or both, through the use of
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22-12532 Opinion of the Court 11
fictitious entities, corporate shells, or offshore financial accounts
. . . ordinarily indicates sophisticated means.” Id. Further, our
cases provide that “[e]ach action by a defendant need not be sophis-
ticated in order to support this enhancement,” so long as “the to-
tality of the scheme was sophisticated.” Barrington, 648 F.3d at
1199.
As for § 2S1.1(b)(3), it applies when a money-laundering of-
fense “involved sophisticated laundering.” The commentary to the
guidelines defines “sophisticated laundering” as “complex or intri-
cate offense conduct pertaining to the execution or concealment of
the 18 U.S.C. § 1956 offense.” U.S.S.G. § 2S1.1(b)(3) cmt. n.5(A).
Sophisticated laundering “typically involves the use of (i) fictitious
entities; (ii) shell corporations; (iii) two or more levels (i.e., layer-
ing) of transactions, transportation, transfers, or transmissions, in-
volving criminally derived funds that were intended to appear le-
gitimate; or (iv) offshore financial accounts.” Id.
The dispute here centers over which enhancement the dis-
trict court applied, and whether the district court clearly erred in
applying it. Bruey contends that the district court applied the so-
phisticated laundering enhancement under U.S.S.G. § 2S1.1(b)(3),
for this was the enhancement cited in the PSI. And because the
district court’s focus was on the relevant factors under
§ 2B1.1(b)(10)(C) when it overruled Bruey’s objection to this en-
hancement, the district court, according to Bruey, conflated the le-
gal standards and committed reversible error. Bruey also argues
that, even assuming the district court applied the right standard,
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12 Opinion of the Court 22-12532
her conduct does not warrant the enhancement under
§ 2S1.1(b)(3).
The government, on the other hand, argues that the district
court justifiably applied the enhancement under § 2B1.1(b)(10)(C).
Even though the PSI cited § 2S1.1(b)(3), the government contends
that the PSI’s description of Bruey’s conduct instead implicated
§ 2B1.1(b)(10)(C). And, according to the government, “the parties
clearly understood what the probation office meant” given the fo-
cus in front of the district court on whether Bruey’s fraudulent con-
duct included “sophisticated means.” The government also argues
that Bruey’s “counsel invited any error by expressly invoking sec-
tion 2B1.1(b)(10)(C) in his objections to the PSR and at sentencing.”
The government thus argues that the district court did not clearly
err in finding that the “sophisticated means” enhancement applied
under § 2B1.1(b)(10)(C), and that, in any case, Bruey forfeited any
potential argument on this front because she did not challenge the
district court’s application of § 2B1.1(b)(10)(C) in her initial brief.
We conclude that Bruey is not entitled to relief. First, Bruey
invited the district court to consider the factors relevant to
§ 2B1.1(b)(10)(C) in deciding whether a two-level enhancement ap-
plied. Starting with her written objection, Bruey objected to “the
+2 enhancement [assessed by the PSI] under USSG §
2B1.1(b)(10)(C).” Bruey proceeded to argue that her conduct did
not fit what was required for an enhancement under
§ 2B1.1(b)(10)(C) based on the commentary to the guidelines and
our cases interpreting and applying the enhancement. Bruey also
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22-12532 Opinion of the Court 13
closed her written objection by arguing that “the § 2B1.1(b)(10)(C)
enhancement . . . is entirely unsubstantiated and must be re-
moved.” Bruey’s counsel reprised these arguments in front of the
district court, objecting to “the sophisticated means enhance-
ment,” distinguishing cases in which we found the district court did
not err in applying the enhancement, and informing the district
court that Bruey’s conduct was not that complex or intricate as re-
quired by § 2B1.1(b)(10)(C) cmt. n.9(B).
On appeal, Bruey argues instead that the district court’s con-
sideration of the very factors that she asked it to consider is cause
for reversal. After extending this invitation below, Bruey cannot
now “cry foul on appeal.” Brannan, 562 F.3d at 1306; see Stone, 139
F.3d at 838 (“[A] defendant should not benefit from introducing er-
ror at trial with the intention of creating grounds for reversal on
appeal.”).
Underlying Bruey’s other argument, that her conduct does
not justify a two-level enhancement under § 2S1.1(b)(3), is the as-
sumption that district courts are tethered to the PSI’s recommen-
dations. But our case law provides otherwise. As we have made
clear, “district courts are not bound by the facts and recommenda-
tions set forth in a PSI; they may choose not to adopt the facts as
recited in the report or not to apply the Guidelines in the proposed
manner.” United States v. Plasencia, 886 F.3d 1336, 1343 (11th Cir.
2018). This means that “with proper notice, a court may apply
Guidelines enhancements not identified in the PSI.” Id.
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14 Opinion of the Court 22-12532
Here, a review of the record confirms that the district
court’s decision to apply a two-level enhancement was based on its
determination that Bruey’s conduct involved “sophisticated
means” under § 2B1.1(b)(10)(C). In front of the district court, the
focus was on whether Bruey’s conduct involved “sophisticated
means.” Bruey’s counsel argued that “[t]here is no sophisticated
means in this case,” and said the government would have to prove
otherwise to the district court. After Bruey made her case using
only authorities relevant to interpreting and applying
§ 2B1.1(b)(10)(C), the government responded by outlining what it
believed was “a sophisticated means of carrying out this fraud,”
and then concluded by stating that “while this isn’t some Einstein
level of sophistication,” it did warrant “consideration for whether
the sophisticated means enhancement would apply.” After hearing
arguments, the district court overruled Bruey’s objection and con-
cluded that “the totality of what occurred here rises to the level to
deserve this enhancement.” Bruey’s counsel later interpreted this
as the district court “impos[ing] the additional two levels for sophis-
ticated means.” We agree with Bruey’s trial counsel that this is the
best reading of the record, even though Bruey’s appellate counsel
asks us to conclude otherwise. We also conclude that Bruey had
notice with respect to the district court’s application of the sophis-
ticated means enhancement, given that she thoroughly litigated its
applicability below. We thus conclude that the district court
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22-12532 Opinion of the Court 15
applied the sophisticated means enhancement under
§ 2B1.1(b)(10)(C) and we affirm Bruey’s sentence.1
AFFIRMED.
1 Because Bruey did not challenge the district court’s application of
§ 2B1.1(b)(10)(C) in her initial brief, we do not consider this issue. See United
States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (holding that a
party forfeits an issue when it fails to raise the issue in its initial brief ).
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