USA v. Anthony James Bruey

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12452
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY JAMES 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-2
____________________
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2 Opinion of the Court 22-12452
Before WILSON, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Anthony James Bruey appeals his sentence of 51 months’ im-
prisonment with 3 years of supervised release and an order of res-
titution for conspiracy to commit wire fraud, wire fraud, conspir-
acy to commit money laundering, and illegal monetary transac-
tions. On appeal, he argues that the district court failed to consider
all of the U.S.S.G. § 3B1.2 factors for determining whether a de-
fendant is eligible for either a minimal or minor role reduction, and
thus the district court clearly erred when it denied his request for a
role reduction. 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; two
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 two counts of illegal monetary transac-
tions in violation of 18 U.S.C. §§ 1957 and 2. Bruey pled guilty to
these counts, and the district court adjudicated him guilty.
Before sentencing, a probation officer prepared a presen-
tencing investigation report (“PSI”), which reported the following.
In March 2020, Congress passed the Coronavirus Aid, Relief, and
Economic Security Act (the “CARES Act”). Pub. L. No. 116-136,
134 Stat. 281 (2020). Among other things, the CARES Act author-
ized two different loan programs for small businesses: the
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22-12452 Opinion of the Court 3
Paycheck Protection Program (“PPP”), which concerned loans
funded by private lenders and fully guaranteed by the Small Busi-
ness Administration (“SBA”), id. § 1102, 134 Stat. at 286. (codified
at 15 U.S.C. § 636(a)(36)), and low-interest financing through the
Economic Injury Disaster Loan program (“EIDL”), id. § 1110, 134
Stat. at 306. Bruey engaged in a conspiracy with his wife, a co-de-
fendant below, to defraud both the private lenders funding the PPP
and the SBA. Between April 2020 and April 2021, Bruey and his
wife (“the Brueys”) submitted over two dozen fraudulent loan ap-
plications seeking benefits totaling close to $2 million. At the time,
Bruey was on state probation for aggravated assault/deadly
weapon and battery by strangulation.
The Brueys applied for fifteen EIDL loans, six of which were
funded for a total of $763,300. One of those applications, filed in
Bruey’s name for a purported sole proprietorship, “fraudulently
represented the gross revenues, costs of goods sold, and number of
employees for a business that did not exist.” The application also
falsely stated that Bruey had not been convicted of a felony or
served a term of probation within the last five years. These false
statements caused the SBA to approve a $76,800 loan and a $10,000
advance and deposit the funds in Bruey’s bank account.
The Brueys also applied for twelve PPP loans, six of which
were funded for a total of around $118,000. For example, in late
April 2020, a fraudulent PPP loan application was submitted in
Bruey’s name. The application represented that Bruey was an eli-
gible, self-employed individual and falsely stated that his net profits
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4 Opinion of the Court 22-12452
for his business were $110,719 in 2019. Again, the application
falsely stated that Bruey had not been convicted of a felony or
served a term of probation within the last five years. Due to these
false representations, a bank funded a $20,583.34 PPP loan depos-
ited in Bruey’s bank account.
Bruey misused these funds for his personal gain. The Brueys
received twelve EIDL and PPP loans, with the proceeds totaling
over $880,000.
The PSI grouped together all six counts for sentencing
guideline calculation purposes pursuant to U.S.S.G. § 3D1.2(d).
The PSI calculated Bruey’s offense level pursuant U.S.S.G. § 2S1.1,
because that was the offense guideline that produced the highest
offense level. See U.S.S.G. § 3D1.3(b). This meant an initial base
offense number of seven, see U.S.S.G. § 2B1.1(a)(1), and a sixteen-
level enhancement because the intended loss here was more than
$1,500,000 but less than $3,500,000, see U.S.S.G. § 2B1.1(b)(1)(I), re-
sulting in a base offense level of 23. Further, because Bruey was
adjudicated guilty of one count of conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(h), the offense level was
enhanced by two. See U.S.S.G. § 2S1.1(b)(2)(B). The offense level
was then decreased by two because Bruey accepted responsibility
for the offense, see U.S.S.G. § 3E1.1(a), and decreased by one be-
cause Bruey assisted authorities in the prosecution of his own mis-
conduct by timely notifying authorities of his intention to enter a
guilty plea, see U.S.S.G. § 3E1.1(b). Therefore, his total offense
level was 22. His criminal history category was III based on a
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22-12452 Opinion of the Court 5
criminal history score of four. The resulting guidelines range was
51 to 63 months’ imprisonment.
In his written objection, Bruey objected to the PSI’s conclu-
sion that he was not entitled to a decrease in offense level based on
his role in the offense. Bruey argued that he should have received
either a minimal or minor role reduction pursuant to U.S.S.G.
§ 3B1.2. Bruey agreed that he knew the funds were obtained fraud-
ulently and benefited from them, but he denied personally submit-
ting any of the claims in the case. The PSI, however, concluded
that no reduction was warranted, pointing first to the fact that four
EIDL applications and two PPP applications were submitted in
Bruey’s name using his personal identifying information. The PSI
also noted that Bruey knowingly received fraudulent funds, some
of which were deposited into bank accounts where he was the sole
signatory, and that Bruey then used these funds with his wife to
buy, among other things, vehicles and a shared residence.
Bruey renewed his objection and made similar arguments
during his first sentencing hearing. Bruey’s counsel told the district
court that Bruey “fully acknowledges that he knew it was being
done on his behalf, and he fully acknowledges receiving the
money, and he fully acknowledges spending the money.” But that
because Bruey “did not, at any time, file any of the electronic doc-
uments or applications” for either the PPP or EIDL loans, counsel
argued he should receive a four-level minimum role reduction. In
response, the government acknowledged that Mrs. Bruey was on
probation for public assistance fraud at the time the instant crimes
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6 Opinion of the Court 22-12452
were committed and said that it considered “her to have more of
the white-collar mind” than Bruey. The government also acknowl-
edged that most applications were filed in Mrs. Bruey’s name, pos-
sibly because Bruey was below the credit score threshold needed
to qualify for an EIDL loan. It was the “government’s belief that a
lot of the brains behind the operation was” Mrs. Bruey. Even with
all of this, the government said that Bruey “understood and knew
of the scheme’s purpose, and that it was going on.” And “he cer-
tainly benefited from it.”
Later, at a joint sentencing hearing for both Bruey and his
wife, Bruey again objected for not receiving a minimal role reduc-
tion, with his counsel arguing that Bruey did not file any of the loan
applications and that he did not do any of the related internet work.
But Bruey’s counsel did acknowledge that Bruey co-owned one of
the purported companies for which the Brueys received loans.
The government responded that, while Bruey was not the one that
created many of the fraudulent documents and applications, he
benefitted greatly from them, which is a pertinent factor in making
a minimal or minor role determination. See U.S.S.G. § 3B1.2 cmt.
n.3(C)(iii). The government noted that the Brueys had purchased
vehicles with the loan money as well as a home worth over
$200,000. The government further argued that Bruey knew what
was happening with respect to the fraudulent scheme. The district
court ultimately overruled Bruey’s objection without explanation.
Before the district court sentenced Bruey, it also heard from
the government and Mrs. Bruey concerning her sentence. Mrs.
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22-12452 Opinion of the Court 7
Bruey’s counsel read text messages that Bruey wrote to Mrs. Bruey
and argued that Bruey was abusive. Counsel also quoted from a
psychologist’s report, which provided that Mrs. Bruey “is highly in-
fluenced and susceptible to coercion due to the power and control
that Mr. Bruey exerts over her. She is not allowed to question his
authority for fear of being attacked verbally and physically.” In
light of this evidence, counsel argued that Mrs. Bruey “was the
peon of the operation.”
The district court sentenced Bruey to 51 months imprison-
ment with 3 years of supervised release and an order of restitution.
This appeal follows.
II.
We review a district court’s denial of a role reduction for
clear error. United States v. Cruickshank, 837 F.3d 1182, 1192 (11th
Cir. 2016). “Under this standard, we will not disturb a district
court’s findings ‘unless we are left with a definite and firm convic-
tion that a mistake has been committed.’” United States v. Clarke,
562 F.3d 1158, 1165 (11th Cir. 2009) (quoting United States v. Craw-
ford, 407 F.3d 1174, 1177 (11th Cir. 2005)). This is because district
court judges are “in the best position to weigh and assess both the
defendant’s role in her relevant conduct and the relative degrees of
culpability of the other participants in that conduct.” United States
v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc)). There-
fore, the “district court’s ‘choice between two permissible views of
the evidence’ as to the defendant’s role in the offense will rarely
constitute clear error ‘[s]o long as the basis of the trial court’s
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8 Opinion of the Court 22-12452
decision is supported by the record and does not involve a misap-
plication of a rule of law.’” Cruickshank, 837 F.3d at 1192 (alteration
in original) (quoting De Varon, 175 F.3d at 945).
III.
A “defendant may receive a two to four level reduction in
[his] base offense level where [his] role in the offense can be de-
scribed as minimal, minor, or somewhere in between.” De Varon,
175 F.3d at 939. “Minimal participants may receive a four-level re-
duction, minor participants may receive a two-level reduction, and
those whose participation falls in between may receive a three-
level reduction.” Id. (citing U.S.S.G. §§ 3B1.2(a)–(b)). Minimal par-
ticipants are defendants who are “plainly among the least culpable
of those involved in the conduct of a group.” U.S.S.G. § 3B1.2 cmt.
n.4. “[T]he defendant’s lack of knowledge or understanding of the
scope and structure of the enterprise and of the activities of others
is indicative of a role as minimal participant.” Id. A minor partici-
pant is a defendant “who is less culpable than most other partici-
pants in the criminal activity, but whose role could not be described
as minimal.” Id. cmt. n.5. The defendant bears the burden to prove
by the preponderance of the evidence that he is eligible for a miti-
gating role. United States v. Martin, 803 F.3d 581, 591 (11th Cir.
2015).
The decision about whether to apply a role reduction is
“based on the totality of the circumstances” and is “heavily depend-
ent upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt.
n.3(C). The district court should consider, “to the extent
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22-12452 Opinion of the Court 9
applicable,” United States v. Valois, 915 F.3d 717, 732 (11th Cir.
2019), the following non-exhaustive list of factors:
(i) the degree to which the defendant understood the
scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in
planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised de-
cision-making authority or influenced the exercise of
decision-making authority;
(iv) the nature and extent of the defendant’s partici-
pation in the commission of the criminal activity, in-
cluding the acts the defendant performed and the re-
sponsibility and discretion the defendant had in per-
forming those acts;
(v) the degree to which the defendant stood to bene-
fit from the criminal activity.
U.S.S.G. § 3B1.2 cmt. n.3(C). Along with these factors, we have
provided two overarching principles to guide district courts: “first,
the defendant’s role in the relevant conduct for which [he] has been
held accountable at sentencing, and second, [his] role as compared
to that of other participants in [his] relevant conduct.” De Varon,
175 F.3d at 940.
Importantly, however, we have held that, in considering
these factors, “a district court is not required to make any specific
findings other than the ultimate determination of the defendant’s
role in the offense.” Id. “So long as the district court’s decision is
supported by the record and the court clearly resolves any disputed
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10 Opinion of the Court 22-12452
factual issues, a simple statement of the district court’s conclusion
is sufficient.” Id. at 939. Therefore, when we evaluate a district
court’s sentencing decision, we may “consider the record from the
entire sentencing hearing and need not rely upon the district
court’s summary statement made at the closing of the sentencing
hearing.” United States v. Suarez, 939 F.2d 929, 934 (11th Cir. 1991).
Bruey has failed to show that the district court clearly erred
in denying a role reduction under U.S.S.G. § 3B1.2. The record
supports the district court’s decision. While Bruey argues that his
wife is more culpable because she submitted the loan applications,
we have said “[t]he fact that a defendant’s role may be less than that
of other participants engaged in the relevant conduct may not be
dispositive of role in the offense, since it is possible that none are
minor or minimal participants.” De Varon, 175 F.3d at 944. And
the record provides ample evidence of Bruey’s involvement be-
yond a mitigating role.
For example, Bruey “knew the [loan] funds were fraudu-
lently obtained,” and “fully acknowledges that he knew it was be-
ing done on his behalf.” There was also evidence consisting of text
message conversations between Bruey and his wife about their
scheme. All of this is relevant to the “degree to which [Bruey] un-
derstood the scope and structure of the criminal activity.” See
U.S.S.G. § 3B1.2 cmt. n.3(C)(i). Record evidence also indicates that
Bruey had the ability to coerce and pressure his wife to act on his
behalf and that he had physically abused her in the past, which
speaks to the “degree to which [he] . . . influenced the exercise of
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22-12452 Opinion of the Court 11
decision-making authority.”1 See id. cmt. n.3(C)(iii). Further, as has
been discussed, Bruey stood to benefit, and did benefit, from the
couples’ fraudulent activity. See id. cmt. n.3(C)(v) (listing as a rele-
vant factor “the degree to which the defendant stood to benefit
from the criminal activity”). With this record, we cannot conclude
that the district court clearly erred.
And while Bruey points us to cases where we “explained the
legal error in making a minor role decision based solely on one fac-
tor,” United States v. Presendieu, 880 F.3d 1228, 1250 (11th Cir. 2018),
the district court here did not cabin its decision to one factor. Un-
like in those cases, the district court below did not indicate that one
factor—here, the degree to which the defendant stood to benefit
from the criminal activity—was “the only factor to be considered in
a case like this one.” Cruickshank, 837 F.3d at 1195.
We thus conclude that the district court did not err when it
denied Bruey both a minor participant and a minimal participant
role reduction. A review of the record shows that the district court
properly examined the totality of the circumstances and found that
Bruey was not eligible for either role reduction. Accordingly, we
affirm Bruey’s sentence.
AFFIRMED.
1 In sentencing Bruey’s wife, the district court took the couple’s relationship
into account and the court concluded that the relationship could not explain
and justify all of Mrs. Bruey’s behavior.
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