USA v. Jeremy Anderson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11796
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY ANDERSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00023-PGB-EJK-1
____________________
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2 Opinion of the Court 21-11796
Before BRANCH, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Jeremy Anderson appeals his 151-month total sentence for
20 counts of mail and wire fraud and conspiracy to commit mail
and wire fraud. He argues that the district court erred in imposing
a two-level enhancement for sophisticated means because his of-
fense did not involve any of the hallmarks of a sophisticated offense
and because simultaneously applying the sophisticated means en-
hancement along with other enhancements constituted double
counting. Further, he argues that his sentence was substantively
unreasonable because the district court failed to give adequate
weight to his difficult childhood and created an unwarranted sen-
tencing disparity between him and his codefendants.
I.
We review a district court’s finding that an offense involved
sophisticated means for clear error.
United States v. Sosa, 777 F.3d
1279, 1300 (11th Cir. 2015). When reviewing for clear error, we
will not disturb a district court’s findings unless we are left with a
definite and firm conviction that a mistake has been made.
Id.
Under U.S.S.G. § 2B1.1(b)(10)(C), a defendant’s offense level
for a fraud offense is enhanced by two levels if the offense involves
sophisticated means and the defendant intentionally engages in or
causes the conduct constituting sophisticated means. U.S.S.G. §
2B1.1(b)(10)(C). The use of repetitive, coordinated conduct to
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21-11796 Opinion of the Court 3
perpetuate and conceal a fraud scheme supports a sophisticated
means enhancement.
United States v. Bane, 720 F.3d 818, 826-27
(11th Cir. 2013). Moreover, the length of a scheme and the loss
inflicted by it can be considered in determining whether a defend-
ant employed sophisticated means.
United States v. Feaster, 798
F.3d 1374, 1381 (11th Cir. 2015). Impermissible double counting
occurs only when one part of the Guidelines is applied to increase
a defendant’s punishment on account of a kind of harm that has
already been fully accounted for by application of another part of
the Guidelines.
United States v. Suarez, 893 F.3d 1330, 1336 (11th
Cir. 2018).
Here, the district court did not clearly err in finding that the
offense involved sophisticated means and that Anderson intention-
ally engaged in the conduct constituting sophisticated means. The
undisputed facts show that Anderson created a “welcome letter”
promising to use investor funds to buy medical receivables and pay
an eight percent interest rate, sent investors a letter from the law
firm purporting to hold the funds in escrow, and falsified multiple
documents. The falsified documents included,
inter alia, falsified
LOPs1 and purported to transfer them to investors as AIC
1 LOPs were letters of protection provided by a patient’s attorney promising
to pay the provider upon receipt of proceeds from a settlement or judgment.
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4 Opinion of the Court 21-11796
Certificates.2 He also fabricated a fake opinion letter from a law
firm representing that the investment was an exempt security. An-
derson was also aware of false representations on Tri-Med’s web-
site and in its advertisements that the investment was better than a
certificate of deposit, that it was backed by major health insurance
companies, and that it was accredited by the Better Business Bu-
reau. While Anderson is correct that the design of the scheme itself
was not overly complex, the mechanisms by which the scheme was
implemented and executed were sufficiently sophisticated to sup-
port the district court’s application of the sophisticated means en-
hancement.
Moreover, Anderson’s methods were repetitive, coordi-
nated, and targeted to reassure investors and make his scheme ap-
pear legitimate, which further supported the enhancement.
Bane,
720 F.3d at 826-27. Additionally, the scheme lasted for nearly 3
years and resulted in a loss of over $17 million. This degree of du-
ration and loss further evidences the sophistication of Anderson’s
methods.
Feaster, 798 F.3d at 1381.
Finally, application of the sophisticated means enhancement
along with the aggravating role enhancement did not result in im-
permissible double counting. The sophisticated means enhance-
ment arises from a defendant’s complex or intricate conduct in the
execution or concealment of an offense, which is distinct from the
2 An AIC Certificate purported to transfer to the investor a particular num-
bered LOP as collateral for the investment.
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21-11796 Opinion of the Court 5
extent of the defendant’s role in the offense.
See Sosa, 777 F.3d at
1300-02.
II.
We review the substantive reasonableness of a sentence un-
der a deferential abuse-of-discretion standard.
Gall v. United
States, 552 U.S. 38, 51 (2007). The party challenging the sentence
bears the burden of proving that it is unreasonable.
United States
v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
A district court abuses its discretion when it “(1) fails to af-
ford consideration to relevant factors that were due significant
weight; (2) gives significant weight to an improper or irrelevant fac-
tor; or (3) commits a clear error of judgment in considering the
proper factors.”
United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (
en banc). A district court must consider all 18 U.S.C.
§ 3553(a) factors but is not required to give all factors equal weight.
United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.
2015). A claim of unwarranted sentence disparities requires that
the defendant be similarly situated to the defendants to whom he
compares himself.
United States v. Duperval, 777 F.3d 1324, 1338
(11th Cir. 2015). Disparities between sentences imposed on code-
fendants is generally not an appropriate basis for relief on appeal.
United States v. Cavallo, 790 F.3d 1202, 1237 (11th Cir. 2015).
Here, Anderson’s sentence is not substantively unreasona-
ble. Anderson’s argument that his sentence created an unwar-
ranted disparity with his codefendants fails. The district court
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6 Opinion of the Court 21-11796
regarded Anderson as not being similarly situated to his codefend-
ants, noting that the Agers were much older and less culpable. An-
derson was also more culpable than Nicholas. Further, Anderson’s
criminal history, which comprises forgery, battery, and grand theft,
also differentiated him from Nicholas, who had no criminal history.
Moreover, Anderson’s argument that his acceptance of responsibil-
ity entitled him to a sentence in line with his codefendants is un-
persuasive because his acceptance of responsibility was already cal-
culated in the guideline range through a three-level reduction.
Thus, Anderson has not met his burden to prove that the district
court abused its discretion by imposing a sentence that created an
unwarranted disparity with his codefendants.
Tome, 611 F.3d at
1378;
Duperval, 777 F.3d at 1338.
In addition, the district court was within its discretion to
consider Anderson’s aggravating factors more than his mitigating
factors in imposing the sentence.
Rosales-Bruno, 789 F.3d at 1254.
The district court considered Anderson’s challenging upbringing
but concluded that the factor was not substantially mitigating, as
Anderson chose to commit fraud despite the opportunities af-
forded to him by being adopted and brought to the United States.
The district court, as it was entitled to do, found that Anderson’s
aggravating role in the scheme, the 300 victims who lost their life
savings, and Anderson’s criminal history outweighed the mitigat-
ing factors asserted by Anderson. The district court stated that it
considered all § 3553(a) factors and it was not required to give equal
weight to all of the factors.
Rosales-Bruno, 789 F.3d at 1254.
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21-11796 Opinion of the Court 7
Therefore, because the district court did not abuse its discretion in
weighing Anderson’s aggravating role and criminal history more
heavily than other factors, Anderson’s sentence was not substan-
tively unreasonable.
AFFIRMED.
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