USA v. Sadonna Wallace, et al.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 17, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13124
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20870-FAM-2
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll l Plaintiff - Appellee,
versus
SADONNA WALLACE,
JAMES ROGERS,
llllllllllllllllllllllllllllllllllllllll Defendants- Appellants.
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Appeals from the United States District Court
for the Southern District of Florida
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(May 17, 2012)
Before MARCUS, WILSON, and BLACK, Circuit Judges.

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PER CURIAM:
Sadonna Wallace and James Rogers appeal the sentences imposed for their
convictions on one count of conspiracy to traffic in or use unauthorized access
devices, in violation of 18 U.S.C. § 1029(b)(2), and one count of use of one or
more unauthorized access devices with intent to defraud, in violation of 18 U.S.C.
§ 1029(a)(2). Both Wallace and Rogers were sentenced to 16 months
imprisonment and ordered to jointly pay a total restitution amount of $16,187.75
to the IRS. On appeal, they challenge the district court’s finding that the IRS is
the proper restitution payee and the district court’s failure to set the terms of
payment for restitution. In addition, Rogers challenges the district court’s decision
to not apply a two-level reduction for acceptance of responsibility. After review,
we vacate the orders of restitution and otherwise affirm Rogers’s sentence.
The district court ordered that Wallace and Rogers pay restitution to the IRS
in the total amount of $16,187.75. Both appellants and the Government argue that
designation of the IRS as victim was error, and we agree. There is no evidence in
the record to suggest that the IRS suffered loss. The Government acknowledges
that it mistakenly identified the IRS as a potential victim during the sentencing
hearing, which gave rise to this error. Accordingly, we vacate the restitution
orders and remand so the district court may identify the correct victims, properly
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allocate restitution amounts to each victim, and specify the restitution schedule
consistent with 18 U.S.C. § 3572(d).*
Regarding the district court’s determination that Rogers was not entitled to a
sentence reduction for acceptance of responsibility, we find that he invited any
error by stating at sentencing that he must “face the consequences that he does not
get acceptance of responsibility.” By acknowledging that he was not entitled to a
reduction for acceptance of responsibility, Rogers invited the district court to
reject that argument and cannot now claim error. See United States v. Love, 449
F.3d 1154, 1157 (11th Cir. 2006) (per curiam) (holding that the defendant invited
any error regarding the length of his supervised release when he “expressly
acknowledged” that the court could impose a term of up to five years).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Because we vacate the restitution orders on the ground that the district court incorrectly*
designated the IRS as a victim, we need not discuss the issue of the restitution payment schedule.
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