United States of America v. Lori Ann Duncan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4752
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORI ANN DUNCAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:13-cr-00010-JPJ-PMS-5)
Submitted: May 23, 2014 Decided: July 7, 2014
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
Brian J. Beck, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, Roanoke Virginia,
Jean B. Hudson, Assistant United States Attorney, Anne H.
Lippitt, Third Year Law Intern, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lori Ann Duncan (Duncan) pleaded guilty to conspiracy to
defraud the United States by passing fraudulent checks, 18
U.S.C. §§ 371 and 514(a)(2), and to passing fraudulent checks,
and aiding and abetting the same, 18 U.S.C. §§ 2 and 514(a)(2).
On appeal, she challenges her sentence. We affirm, but modify
the restitution amount in the judgment from $71,448.27 to
$71,398.28.
I
The fraudulent check cashing conspiracy at issue involves
checks issued by Comdata Network, Inc. (Comdata). For ease of
reference, we will refer to such checks as “Comcheks.” Blank
Comcheks are commonly used by trucking companies to assist their
truck drivers in accessing funds while traveling. Typically, a
truck driver obtains a blank Comchek at a truck stop, fills in
her name, the name of her trucking company, and the amount
authorized by the trucking company. The truck driver also
writes in an express code that she receives from the trucking
company authorizing that particular Comchek. The truck driver
then contacts Comdata and provides the serial number of the
Comchek and the express code provided by the trucking company.
Comdata then authorizes the Comchek, which allows the truck
driver to use the Comchek as a personal check at retail

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businesses. At the time of negotiation, the retail store clerk
is supposed to contact Comdata to confirm that the Comchek has
been authorized.1
The conspiracy began in the summer of 2012 with three
participants, Buren Jess Cook (Cook), Amanda Kay Mosley
(Mosley), and Duncan’s friend, Tina Gillett (Gillett). Gillett
had previously dated a truck driver for several years and
learned about Comcheks from him. Cook was familiar with
Comcheks from his previous experience as a truck driver. Over
time, Gillett discovered that Comcheks could be cashed at
certain Walmart stores without the proper Comdata authorization.
Basically, Gillett learned that retail store clerks at certain
Walmart locations would not confirm with Comdata that the
presented Comchek had been properly authorized by Comdata before
cashing the Comchek. Gillett saw Walmart’s failure to follow
the proper authorization procedure as a way to make money to buy
drugs.
Between July 3 and July 5, 2012, Cook cashed five Comcheks
at a Walmart store in Johnson City, Tennessee.2 Between July 5
1 On the face of each Comchek, there is a printed warning
that says, “DO NOT CASH BEFORE CALLING,” along with Comdata’s
toll-free telephone number. (J.A. 349).
2 In order to make the Comcheks appear more legitimate,
Gillett created fictitious trucking company names, such as
“Gillett Trucking” and “PGT Trucking.” (J.A. 210).

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and November 7, 2012, no fraudulent Comcheks were cashed because
Gillett was trying to kick her addiction to drugs. Her
resumption of drug use fueled her desire to resume cashing
fraudulent Comcheks, so, some time in the fall of 2012, Gillett
approached Cook and Mosley about cashing more fraudulent
Comcheks. In their discussions, Cook and Mosley came up with
the idea to recruit others to join the conspiracy. With
relative ease, the three found numerous people interested in
cashing fraudulent Comcheks for a little extra money.3 In fact,
between November 8, 2012 and January 2, 2013, members of the
conspiracy cashed hundreds of fraudulent Comcheks at various
Walmart locations, with the most cashed at the Walmart location
in Bristol, Virginia.
Around November 15, 2012, Duncan joined the conspiracy.
Around the time she joined, Duncan was aware that Cook and
Mosley were actively involved in the conspiracy, and she also
was aware that Lee Roy Frazier, Gillett’s boyfriend, was driving
other people to cash Comcheks on behalf of Gillett. Like
Gillett, Duncan was interested in making money to buy drugs.
Her involvement in the conspiracy began with the recruitment of
others to pass Comcheks provided by Gillett. During her time in
3 Each person that cashed a Comchek (or a few Comcheks at
one time) on Gillett’s behalf received something in the
neighborhood of $50.00 or $60.00 from Gillett.

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the conspiracy, Duncan recruited at least seventeen other
individuals to cash Comcheks. Like Gillett, Duncan never cashed
any fraudulent Comcheks herself, but she filled out numerous
Comcheks and she paid her recruits various amounts of money for
their respective services.
Initially, Duncan was content working with Gillett, pooling
all of the profits she made with her. As Gillett phrased it, in
the “beginning[,] . . . everybody was in, working together.”
(J.A. 253). However, some time before Christmas 2012, Gillett
learned that Duncan was cashing Comcheks without her knowledge
and without sharing the proceeds. This led to a rift between
Gillett and Duncan, where Gillett refused to work any more with
Duncan. This rift did not stop Duncan from recruiting others to
cash fraudulent Comcheks or from telling people that she was
cashing Comcheks because she worked for Gillett.
It appears Duncan’s last attempt to cash a few Comcheks was
shortly after Christmas 2012, but these Comcheks were rejected.
On January 2, 2013, Daulton Lee Spellar, a recruit of Cook and
Mosley, cashed approximately ten Comcheks at the Walmart store
in Sevierville, Tennessee. These were the last Comcheks cashed
by the charged conspiracy.
Around January 15, 2013, the United States Secret Service
(USSS) began an investigation after it was notified by the
Washington County, Virginia Sheriff’s Office (WCSO) that the

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WCSO had discovered that approximately fifty fraudulent Comcheks
were cashed at the Walmart store in Bristol, Virginia in
December 2012. The investigation by the USSS led to numerous
arrests in February 2013, including Gillett’s and Duncan’s
arrests.
On March 11, 2013, Duncan, along with sixty-nine other
conspirators, was charged in a two-count indictment by a federal
grand jury sitting in the Western District of Virginia. Count
One charged Duncan (and her sixty-nine conspirators) with
conspiracy to defraud the United States by passing fraudulent
checks, 18 U.S.C. §§ 371 and 514(a)(2), and Count Two charged
Duncan (and her sixty-nine conspirators) with passing fraudulent
checks, and aiding and abetting the same, 18 U.S.C. §§ 2 and
514(a)(2).
Duncan pleaded guilty without the benefit of a plea
agreement. In preparation for sentencing, a presentence
investigation report (PSR) was prepared by a United States
Probation Officer. The probation officer determined that
Duncan’s base offense level was 7 under United States Sentencing
Commission, Guidelines Manual (USSG), § 2B1.1(a)(1) (Nov. 2012).
Eight levels were added because, in the probation officer’s
view, the amount of the loss was greater than $70,000.00 but no
more than $120,000.00. Id. § 2B1.1(b)(1)(E). According to the
probation officer, the actual loss in furtherance of the

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conspiracy and reasonably foreseeable to Duncan was $71,448.27.
This amount, in the probation officer’s view, represented the
total monetary amount of the fraudulent Comcheks cashed by
members of the conspiracy from November 15, 2012 through January
2, 2013. For her organizer/leadership role in the offense,
Duncan’s offense level was increased four more levels under USSG
§ 3B1.1(a). After receiving a three-level reduction for
acceptance of responsibility under USSG §§ 3E1.1(a) and (b), the
probation officer determined that Duncan’s total offense level
was 16. Coupled with a Criminal History Category of V, Duncan’s
advisory sentencing range was determined to be 41 to 51 months’
imprisonment. The probation officer also recommended that
Duncan be ordered to pay $71,448.27 in restitution.
Duncan timely objected to several portions of the PSR. As
to the role-in-the-offense enhancement, Duncan claimed that,
although she was a manager or a supervisor, she was not an
organizer or a leader. As to the loss enhancement, Duncan
contended that, because she left the conspiracy around December
24, 2012, she should not be held accountable for Comcheks cashed
after that date. She also claimed that she was not responsible
for any Comcheks cashed by individuals she did not know
personally. According to Duncan, she only was accountable for a
loss of $17,712.28, which would have resulted in a four-level
enhancement instead of an eight-level enhancement. The

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$17,712.28 loss figure pressed by Duncan represented the total
monetary amount of the Comcheks cashed by conspirators Duncan
personally accompanied into the Walmart store where the
respective Comchek (or Comcheks) was cashed. On the issue of
restitution, Duncan’s objection rested on the reasoning she
employed to challenge the probation officer’s loss finding.
Finally, Duncan claimed that she was entitled to a downward
departure on the basis that her criminal history was overstated
because she received six criminal history points for three
offenses involving driving with a suspended license.
The district court held two sentencing hearings. During
the first, the government and Duncan presented both testimonial
and documentary evidence. Following the presentation of
evidence, the district court entertained the arguments of
counsel, after which the district court decided to take the
matter under advisement.
On September 11, 2013, the district court issued an opinion
overruling Duncan’s objections to the PSR. As to the role-in-
the-offense enhancement, the district court concluded that
Duncan was an organizer or leader because she recruited numerous
individuals to join the conspiracy, filled out the fraudulent
Comcheks for them to use, received the proceeds, and then paid
such individuals for their involvement in the conspiracy. As
to the loss enhancement, the district court concluded that

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Duncan was responsible for all of the losses for fraudulent
Comcheks cashed by her conspirators from November 15, 2012, the
date she joined the conspiracy, through January 2, 2013, the
date the last of the Comcheks was cashed--an amount the district
court believed equaled $71,448.27.4 In the district court’s
view, losses from these Comcheks were in furtherance of the
charged conspiracy and reasonably foreseeable to Duncan because
she was deeply involved in the execution of the scheme, played a
major role recruiting others to join, and was aware that others,
for example Cook and Mosley, were recruiting others to cash
Comcheks. The district court further opined that the uniformity
of method employed by Gillett, Duncan, and others suggested that
the losses from the date of Duncan’s rift with Gillett through
January 2, 2013 were in furtherance of the charged conspiracy
and reasonably foreseeable to Duncan. This opinion was
4 The government concedes that the district court (and the
probation officer), in calculating the amount of actual loss,
made a slight arithmetic error in the amount of $49.99. This
miscalculation was the result of a discrepancy between the
amount of actual loss alleged in the indictment--$90,158.42--and
the amount of actual loss set forth in one of the exhibits the
government proffered at the first sentencing hearing--
$90,108.43. Unlike the indictment, the government’s exhibit
correctly did not include an unsuccessful attempt to cash a
$49.99 Comchek. As a result of this discrepancy, the government
concedes that the actual loss attributable to Duncan is
$71,398.28 and not $71,448.27. As noted below, this slight
arithmetic error does not prejudice Duncan on the loss issue,
but it does warrant a modification of the amount of restitution
she is required to pay.

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supported by the facts that, upon joining the conspiracy, Duncan
concentrated her efforts on the Walmart store in Bristol,
Virginia while Cook and Mosley targeted Walmart locations in
eastern Tennessee, and that Duncan continued to use Gillett’s
name after their rift. As to restitution, using its analysis in
calculating the amount of loss, the district court set the
restitution amount at $71,448.27, the amount it believed was the
actual loss.
The second sentencing hearing was held on September 24,
2013. At the hearing, Duncan urged the district court to depart
from the Guidelines range or impose a variance sentence below
the advisory Guidelines range. This request was based in part
on the notion that Duncan’s criminal history was overstated
because six of her criminal history points were based on three
minor offenses--one driving with a suspended license offense
(one point) and two repeated driving with a suspended license
offenses (five points). The request was also based in part on
the notion that the thirty-three month sentence Gillett received
was lower than the low-end of Duncan’s advisory Guidelines
range. The district court rejected these arguments, stating:
While I recognize that I have the authority to depart
based on this ground, I decline to do so in my
discretion. The defendant has a lengthy criminal
history involving different types of crimes occurring
over significant portions of her adult life. The
driving offenses for which she received criminal
history points were serious ones, and in combination

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with her other crimes show a continuing disregard for
the law which do support her criminal history
category. They indicate to me a likelihood of
recidivism in this case.
* * *
I would note that Ms. Gillett, of course, testified
and cooperated for the Government in this case, and
received a consideration in that regard. Overall, I
find a sentence within the guideline range is
appropriate in the defendant’s case, even based on
these factors relied upon by her. And I do this
because of the defendant’s extensive involvement in
the case, [the] conspiracy as outlined in my earlier
opinion in this case, I find a sentence within the
guideline range, therefore, reflects the seriousness
of her conduct, and will help the defendant, in my
opinion, refrain from further crimes as a deterrent.
(J.A. 366-368). Duncan was sentenced to forty-one months’
imprisonment on each count, to be served concurrently.
Restitution was ordered in the amount of $71,448.27.
II
We review sentences for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Miscalculation of the
Guidelines range is a significant procedural error. Id. In
assessing whether the district court has properly applied the
Guidelines, we review factual findings for clear error and legal
conclusions de novo. United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008). We will “find clear error only if, on the
entire evidence, we are left with the definite and firm

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conviction that a mistake has been committed.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (citation,
alteration, and internal quotation marks omitted).
A
Duncan argues that her sentence is procedurally
unreasonable because the district court erred in calculating the
amount of loss under USSG § 2B1.1(b)(1). We disagree.
The Guidelines instruct that the amount of loss is “the
greater of actual loss or intended loss.” USSG § 2B1.1 comment.
(n.3(A)). “‘Actual loss’ means the reasonably foreseeable
pecuniary harm that resulted from the offense.” Id. comment.
(n.3(A)(i)). “‘[R]easonably foreseeable pecuniary harm’ means
pecuniary harm that the defendant knew or, under the
circumstances, reasonably should have known, was a potential
result of the offense.” Id. comment. (n.3(A)(iv)). “[T]he
determination of loss attributable to a fraud scheme is a
factual issue for resolution by the district court, and we
review such a finding of fact only for clear error.” United
States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001). In
applying this standard, we must be mindful that, under the
Guidelines, the district court must only make a “reasonable
estimate” of the loss amount based on available information.
USSG § 2B1.1 comment. (n.3(C)).

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“In calculating fraud loss, a sentencing court must first
apply the principles of ‘relevant conduct.’” United States v.
Bolden, 325 F.3d 471, 498 (4th Cir. 2003). A defendant charged
with participating in a conspiracy only can be held accountable
for the reasonably foreseeable acts of others that are taken in
pursuit of the criminal activity she agreed to join. United
States v. Gilliam, 987 F.2d 1009, 1012–13 (4th Cir. 1993); see
also United States v. Otuya, 720 F.3d 183, 191 (4th Cir. 2013)
(noting that in cases involving “jointly undertaken criminal
activity, a particular loss may be attributed to a defendant if
it results from the conduct of others so long as the conduct was
in furtherance of, and reasonably foreseeable in connection with
the criminal activity”) (citation and internal quotation marks
omitted).
In this case, the district court made a reasonable estimate
that the actual loss in furtherance of the conspiracy and
reasonably foreseeable to Duncan was in excess of $70,000.00,
but no more than $120,000.00.5 First off, Duncan was heavily
involved in the conspiracy as one of its main organizers.
Although the conspiracy spanned from July 3, 2012 through
5 On the loss calculation, the district court’s slight
$49.99 arithmetic error does not affect Duncan’s substantial
rights under Rule 52(a) of the Federal Rules of Criminal
Procedure because the loss enhancement would have been the same
using the lower amount ($71,398.28).

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January 2, 2013, only five Comcheks were cashed between July 3
and November 7, 2012. Therefore, Duncan, who entered the
conspiracy about November 15, 2012, was part of the scheme from
the very beginning of the active period and remained involved
until the end. Second, Duncan was fully aware of the scope of
the operation. She was a friend of Gillett and worked closely
with her, and she knew that Cook and Mosley were recruiting
others and cashing Comcheks. Third, like Gillett, Cook, and
Mosley, Duncan recruited numerous individuals to participate in
the conspiracy so the goal of the conspiracy--to make money to
purchase drugs--could be realized. Fourth, the level of
coordination between the main organizers, of whom Duncan was
one, supports the district court’s actual loss finding. The
main organizers understood that only so many Comcheks could be
cashed at a particular Walmart store, so, in response to this
fact, Cook and Mosley focused on the Walmart locations in
eastern Tennessee, while Duncan focused her efforts on the one
in Bristol, Virginia. Such coordination by top members of the
conspiracy fatally undermines Duncan’s argument that she is not
responsible for losses from Comcheks cashed by conspirators
unknown to her. Given the structure, nature, and duration of
the conspiracy, such losses clearly were within the scope of her
agreement and reasonably foreseeable to her. Cf. Otuya, 720
F.3d at 191 (holding that the defendant was responsible for

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losses in a fraudulent check scheme where he “personally
perpetrated the underlying fraudulent transactions or because he
had a close working connection with the conspirators who did”).
Duncan argues that, because she withdrew from the
conspiracy shortly before Christmas 2012, she could not be held
accountable for losses generated after that date by the
remaining members of the conspiracy. A defendant’s membership
in a conspiracy is presumed to continue until she withdraws from
the conspiracy by affirmative action. United States v. West,
877 F.2d 281, 289 (4th Cir. 1989). Withdrawal must be shown by
evidence that the defendant acted to defeat or disavow the
purposes of the conspiracy. Id. An affirmative act sufficient
to withdraw from a conspiracy generally requires the defendant
to disavow her participation either through “the making of a
clean breast to the authorities, or communication of the
abandonment in a manner reasonably calculated to reach co-
conspirators.” United States v. Leslie, 658 F.3d 140, 143 (2d
Cir. 2011) (citation and internal quotation marks omitted).
“Mere cessation of the conspiratorial activity by the defendant
is not sufficient to prove withdrawal.” Id.
In this case, the record does not reflect that Duncan
withdrew from the conspiracy. She took no affirmative action to
withdraw from the conspiracy. While Gillett and Duncan had a
rift before Christmas 2012, Duncan continued to participate in

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the scheme. Moreover, she did not communicate her purported
withdrawal to others, and, in fact, Duncan continued to claim an
association with Gillett after her purported withdrawal.
In sum, Duncan is not entitled to relief on her challenge
to the district court’s loss finding. The district court did
make a minor arithmetic error, but such error is not prejudicial
to Duncan because the actual loss still exceeds the sum of
$70,000.00.
B
Duncan also raises several other sentencing issues that she
contends should be resolved in her favor. First, she contends
that the district court erred in calculating the amount of
intended loss under the Guidelines. Because the district court
used the actual loss amount in calculating the amount of loss
attributable to Duncan under the Guidelines, assuming arguendo
there was error in the calculation of the amount of intended
loss, the assumed error does not affect Duncan’s substantial
rights under Rule 52(a) of the Federal Rules of Criminal
Procedure.
Second, Duncan contends that the district court erred when
it rejected her request for either a downward departure from the
advisory Guidelines range or a variance sentence because her
criminal history overstated the seriousness of her prior
criminal conduct. Regarding Duncan’s request for a downward

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departure, the record reflects that the district court
recognized its authority to depart but concluded that a
departure was not warranted on the facts of this case. The
district court’s departure decision is therefore not reviewable
on appeal. United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008).
On the question of variance, as noted above, Duncan’s
advisory Guidelines range was correctly calculated, and the
record reveals that the district court explicitly discussed the
relevant factors set forth in 18 U.S.C. § 3553(a) and explained
in detail its reasons for selecting the sentence imposed. We
presume that a sentence imposed within the properly calculated
Guidelines range is reasonable. Rita v. United States, 551 U.S.
338 (2007); United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008). The record contains nothing that indicates the district
court abused its discretion in selecting a forty-one month
sentence, which was the bottom of the applicable Guidelines
range.
Third, Duncan argues that the district court created an
unwarranted § 3553(a)(6) sentencing disparity because Gillett
was sentenced to a lower sentence than she was. We hold that it
was well within the district court’s broad discretion to impose
on Duncan a forty-one month sentence; the district court clearly
noted that Duncan’s extensive criminal history, her role in the

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offense, and Gillett’s cooperation with the government warranted
the challenged disparity. Moreover, we, along with numerous
other circuits, have recognized that § 3553(a)(6) is aimed at
eliminating national sentencing disparities, not disparities
between codefendants. United States v. Withers, 100 F.3d 1142,
1149 (4th Cir. 1996); see also United States v. Simmons, 501
F.3d 620, 623–24 (6th Cir. 2007) (collecting cases).
Finally, Duncan argues that the district court erred in
calculating the amount of restitution she owed pursuant to the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A.
The MVRA orders that a defendant make restitution to the “victim
of the offense.” Id. § 3663A(a)(1). With respect to “an
offense that involves as an element a scheme, conspiracy, or
pattern of criminal activity,” a victim is defined broadly to
include “any person directly harmed by the defendant’s criminal
conduct in the course of the scheme, conspiracy, or pattern.”
Id. § 3663A(a)(2). This language authorizes a district court to
include in the restitution order the losses that result from a
criminal scheme or conspiracy, regardless of whether the
defendant is convicted for each criminal act within that scheme.
United States v. Jinwright, 683 F.3d 471, 485 (4th Cir. 2012).
In other words, each member of the conspiracy that in turn
causes property loss to a victim is responsible for the loss
caused by that conspiracy. United States v. Newsome, 322 F.3d

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328, 341 (4th Cir. 2003). The MVRA does, however, permit the
district court, in its discretion, to mitigate the impact that
the restitution order might have on the defendant involved in a
conspiracy, but only in two respects: (1) it may relax the
schedule of payments based on the defendant’s financial
circumstances, 18 U.S.C. § 3664(f)(2); and (2) it “may apportion
liability among the defendants to reflect the level of
contribution to the victim’s loss and economic circumstances of
each defendant,” if more than one defendant has contributed to
the loss, id. § 3664(h).
In this case, Duncan was required to pay restitution in the
amount of $71,448.27, an amount the district court erroneously
believed was the amount of actual loss under the Guidelines. As
noted above, the amount of actual loss under the Guidelines was
$71,398.28. Under the restitution order, Duncan was ordered to
pay, during incarceration, monthly installments of $25.00 per
month or 50% of her monthly income, whichever is less, and,
following her release, $100.00 per month. In our view, the
district court’s restitution order was fair, if not generous.
Under the MVRA, Duncan was liable for all of the losses of the
charged conspiracy as a whole, not just the losses generated
while she was a member. See Newsome, 322 F.3d 340-42 (affirming
restitution award against defendant Newsome for $248,460.00 of
losses resulting from the conspiracy as a whole, even though the

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loss was only $32,322.00 for the period of Newsome’s membership
in the conspiracy). Although it was not required to do so, the
district court generously ordered that Duncan be ordered to pay
only a portion of the losses generated by the charged conspiracy
and appropriately tailored Duncan’s payment schedule to lessen
the economic impact such payments would have on her. We find no
error in the district court’s decision to order restitution in
an amount equaling the actual loss under the Guidelines.
Because the district court sought to impose a restitution amount
equaling the actual loss under the Guidelines, we will modify
the judgment so that it reflects an amount of restitution of
$71,398.28 instead of $71,448.27.
III
For the reasons stated herein, we affirm the district
court’s judgment in toto, with the exception that we modify the
amount of restitution from $71,448.27 to $71,398.28. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED

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