USA v. Joshua Roberts

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12824
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA ROBERTS,
a.k.a. Onyx,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cr-00114-WMR-CCB-10
____________________
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2 Opinion of the Court 22-12824
Before G RANT, L AGOA, and B RASHER , Circuit Judges.
PER CURIAM:
Joshua Roberts appeals his sentence of 97-months’ imprison-
ment with 3 years of supervised release and an order of restitution
for conspiracy to commit money laundering. Roberts argues the
district court clearly erred in finding he did not accept responsibility
for his offense and denying him a sentencing guidelines reduction
pursuant to U.S.S.G. § 3E1.1(a). For the following reasons, we af-
firm.
I.
In 2020, Roberts and twenty-two codefendants, including
Dominique Golden, were indicted for conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h). This was a
part of a larger, six-count indictment stemming from the conspir-
acy. Two years later, Roberts pled guilty to the single count with-
out a negotiated plea agreement.
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”), which reported the following.
Roberts and his co-conspirators acquired funds through business
email compromise (“BEC”) scams, romance scams, and retirement
account scams that were then deposited into personal and business
bank accounts. Personal bank accounts were often opened using
either false identities or the victims’ identities, and business bank
accounts were opened for “sham” companies that were registered
with state secretaries of state but did not have physical business
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22-12824 Opinion of the Court 3
addresses, earn legitimate income, or pay wages to employees.
Once the funds were deposited in fraudulent bank accounts, the co-
conspirators would make interstate and wire transfers to other ac-
counts or cash withdrawals to make the funds hard to trace.
The entire conspiracy lasted approximately from October
2012 to February 2020, and Roberts became involved in 2018
through his now-wife, Dominique Golden. The BEC schemes in-
volved tricking a company’s employee into clicking on an attach-
ment or a link in an email that appeared to be legitimate, which
then released malware that provided access to the employee’s
email correspondence. The intruder would monitor the corre-
spondence to determine when a large financial transaction was
scheduled to take place. The intruder would then send an email
posing as a party to the transaction, instructing the money to be
wired to a different account, i.e., one controlled by the intruder or
a conspirator.
Federal agents linked Roberts to over two dozen different
fraudulent transactions from 2018 to 2020. Roberts’s role was to
open bank accounts that would receive the fraudulent funds ob-
tained from BEC scams and then to withdraw the money from
those accounts, sometimes transferring them to other fraudulent
accounts. Roberts was associated with ten separate bank accounts
at seven different financial institutions, eleven different aliases, and
eight “sham” companies. The PSI calculated $10,147,697.40 as the
intended loss attributable to Roberts and $9,675,739.73 as the ac-
tual loss payable in restitution.
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4 Opinion of the Court 22-12824
When asked to describe his conduct by the probation officer,
Roberts said the following:
I met Dominique Golden in April 2018, while I was
living in Atlanta, Georgia. Golden got me involved
in this case through her circle of friends which in-
cluded her ex-boyfriend. I committed the offense be-
cause I had a lot going on in my life at the time and
my motivation for committing the fraud was for fi-
nancial gain. I received funds into my account from
two separate wire transfers and then had cashier’s
checks issued in names provided to me by Golden.
These names were aliases used by Golden. I am re-
morseful for my conduct.
The PSI calculated a base offense level of 28 pursuant to
U.S.S.G. § 2S1.1(a)(1). The PSI then assessed a two-level enhance-
ment under U.S.S.G. § 2S1.1(b)(2)(B) because Roberts was con-
victed of an offense under 18 U.S.C. § 1956. The PSI did not rec-
ommend an acceptance-of-responsibility adjustment under
U.S.S.G. § 3E1.1 because, although Roberts pled guilty and ex-
pressed remorse, he still falsely contended that he received only
two wire transfers into accounts he controlled and minimized his
involvement and role by trying to shift the blame to Golden.
Based on an offense level of 30 and a criminal history cate-
gory of I, the calculated guideline range was 97 to 121 months’ im-
prisonment. The PSI further recommended that Roberts be jointly
and severally liable for payment of restitution in the amount of
$9,675,739.73. The statutory maximum term of imprisonment was
20 years.
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22-12824 Opinion of the Court 5
Roberts made numerous factual objections to the conduct
reported in the PSI, including denying that he was affiliated with
certain bank accounts and sham companies and denying that he
used certain aliases. He also objected to the PSI’s failure to recom-
mend an acceptance-of-responsibility reduction, arguing that his
offense level should be reduced by two to 28. With Roberts’s crim-
inal history category of I, this offense level would provide for a
guideline range of 78 to 97 months. See U.S.S.G. ch. 5, pt. A. Rob-
erts argued that he was explaining his role in the fraud by acknowl-
edging his wife as the instigator for his involvement and was not
attempting to shift blame away from himself. He also argued that
he accepted responsibility for his actions. Roberts repeated these
arguments in his sentencing memorandum, in which he requested
a sentence of 70 months’ imprisonment. He stated that, by address-
ing his wife’s role, who was the “driving force behind his participa-
tion in the criminal enterprise,” he “was attempting to adequately
explain his motivations and deviations from his normal behavior to
course of conduct for which he felt ashamed.”
At sentencing, the district court recognized that while Rob-
erts had previously objected to “almost everything” regarding his
involvement in the case, he had withdrawn all his objections other
than the one relating to the acceptance-of-responsibility reduction.
Roberts’s counsel explained that while Roberts initially found it dif-
ficult to “wrap his mind around” the extent of his responsibility for
the conspiracy, he withdrew the objections because “he under-
stands that the overarching conduct was extremely hurtful” and “is
extremely remorseful.” Counsel also told the district court that
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6 Opinion of the Court 22-12824
Roberts was “swept up into romance” with Golden and described
his actions as “willful ignorance” in the beginning. However, coun-
sel stated Roberts now “realizes that the money was fraudulently
obtained and that he had a part in that.”
Roberts told a similar story during his allocution, describing
how he met Golden and how she offered to help him out if he
“agreed to cash some checks for her.” While Roberts said he “ab-
solutely had no idea of a larger scheme at hand,” when he opened
his first bank account, he “was ready to do whatever” for Golden.
He started to “realize more and more what a dangerous game
[they] were both playing” after Golden was arrested five months
into their marriage. And then, when Golden was arrested again
along with Roberts on this indictment, Roberts said to his “surprise
this was far bigger than [he] initially imagined.” Although he “had
good intentions,” his “actions spoke otherwise.” Now, he said, he
understands his past actions were “totally unacceptable and inap-
propriate.”
Roberts’s counsel then argued that even though it had taken
Roberts a while to come to terms with his actions, he withdrew his
factual objections, was prepared to sign a financial restitution
agreement, and was willing to cooperate with any further investi-
gation. Counsel asked the district court to grant Roberts the full
three-level acceptance-of-responsibility reduction under U.S.S.G. §
3E1.1.1
1 On appeal, Roberts concedes that he is only eligible for a two-level deduction
given that an additional, one-level reduction under U.S.S.G. § 3E1.1(b)
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22-12824 Opinion of the Court 7
As for the 18 U.S.C. § 3353(a) factors, Roberts’s counsel ar-
gued that Roberts did not “have the greatest familial influences
growing up,” which made him susceptible to Golden’s influence.
Moreover, counsel argued that a 70-month sentence was a signifi-
cant amount of time to spend in prison for someone in their early
thirties, said a longer sentence was unnecessary to promote respect
for the law, and noted that Roberts hoped to take advantage of
many programs while in prison to make a positive impact when he
is released. Counsel also predicted that Roberts would not commit
any more offenses once released and asked the court to consider
Roberts’s codefendants’ sentences to avoid sentencing disparities,
specifically pointing to Golden’s 54-month sentence. The district
court interjected that Roberts and Golden were situated quite dif-
ferently in terms of the guideline range even though he was “point-
ing a finger at her.” Counsel concluded by stating that Roberts was
“taking full responsibility” but “was not the ringleader in this” and
that, thus, a 70-month sentence would be appropriate.
In response to Roberts’s request for the acceptance-of-re-
sponsibility reduction, the government argued that pleading guilty
does not automatically entitle a defendant to an adjustment and
that the burden was on Roberts to show he has acted consistent
with acceptance of responsibility. The district court asked whether
this Court forbade credit when a defendant entered a plea that did
not require the government to prove its charges at trial but did not
requires, among other things, a “motion of the government,” in support of the
reduction.
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8 Opinion of the Court 22-12824
take full responsibility for his actions. The government responded
that it would not be forbidden, but proceeded to point to this
Court’s precedent in which we held that frivolously withholding or
contesting information that is later determined to be true is incon-
sistent with acceptance of responsibility. See, e.g., United States v.
Moriarty, 429 F.3d 1012 (11th Cir. 2005). The government con-
tended that Roberts presented a “false narrative” to the probation
officer and to the court in his allocution, even though he had with-
drawn his factual objections to the PSI, and thus his case was like
those where a reduction was denied. The government also refused
to recommend the one-level adjustment under § 3E1.1(b), for a de-
fendant is only eligible for it when he first receives a two-level de-
duction under § 3E1.1(a).
The government advocated for a sentence of 105 months’
imprisonment, followed by three years of supervised release. The
government argued that although Roberts was charged with only
one count, his involvement was essential to the success of the con-
spiracy, and he laundered over ten million dollars. The govern-
ment also pointed out that Roberts and Golden had supported their
lavish lifestyle with fraudulent money and emphasized Roberts
continued to do so even after Golden was arrested. Further, the
government argued Roberts was not similarly situated to any of his
codefendants because his loss amount was significantly greater, he
did not have similar mitigating circumstances, and he continued to
shift blame instead of taking accountability for his own actions,
even though his involvement was on balance with Golden’s.
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22-12824 Opinion of the Court 9
Roberts’s counsel responded that it was not Roberts’s inten-
tion “to pass off responsibility onto Ms. Golden” but only “to ex-
plain how he got involved with the conduct to begin with.” As for
the loss amount, counsel explained to the court that Roberts had
rejected a plea offer when the calculated loss was lower, so the only
reason he had a greater attributed loss than his codefendants was
because the government had more time to investigate him.
The district court adopted the PSI's factual findings and
stated that they reflected Roberts’s involvement from the “outset”
was that of more than just a “bit player influenced by others.”
Given Roberts’s attempt to “minimize his involvement,” to “accept
some responsibility but only a piece,” and “then to explain it in a
way that blames others despite that that’s not what the facts in the
PS[I] establish,” the district court found it difficult to find any rea-
son to give Roberts credit for his guilty plea based on the § 3553(a)
factors and § 3E1.1. The district court also said it was “not sure that
the defendant necessarily appreciates” all “the harm that has oc-
curred by all of these victims and all of this money.” The district
court found it unpersuasive that Roberts agreed to forfeiture and
restitution because recovery of the money owed was unlikely in
cases of this magnitude.
Ultimately, the district court concluded that it would not de-
viate from the guidelines calculation, overruled Roberts’s objec-
tion to the denial of the acceptance-of-responsibility adjustment
and imposed a sentence of 97 months. In explaining its low-end
sentence, the court stated that it considered the fact that Roberts’s
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10 Opinion of the Court 22-12824
guilty plea saved the government from having to go to trial. The
district court further ordered restitution in the amount of
$9,675,739.73 and a 3-year term of supervised release.
The district court found none of the § 3553(a) factors
weighed in Roberts’s favor. The district court concluded Roberts’s
personal history and characteristics did not outweigh his offense
conduct. The district court stated that it wanted the sentence im-
posed to reflect the seriousness of the offense and provide adequate
deterrence, especially since Roberts minimized his role in the con-
spiracy. In discussing the need to avoid sentencing disparities be-
tween codefendants, the court noted Roberts might have been able
to receive credit for acceptance of responsibility if he had accepted
a plea agreement; however, it was skeptical he would have been
awarded the adjustment “based upon his refusal to fully embrace
his own conduct” at the hearing. Further, the court stated it would
not be fair to other defendants who do take responsibility after
agreeing to a plea to have Roberts turn down a plea agreement and
then receive the benefits of one. The district court found no
grounds for granting a variance.
When prompted by the court, the government asked the dis-
trict court to clarify statements it made regarding its understanding
of its authority to deviate from the guideline range. The district
court responded that it “obviously” had the ability to depart from
the guidelines; it just found no “justification in the facts of this case
to depart.” The district court also said that the resulting sentence
would have been the same “even if the guidelines specifically had
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22-12824 Opinion of the Court 11
a provision that would allow [it] to have a lower guideline range
than what actually [it] ha[d] determined applie[d] in this case . . . in
light of the unwillingness of the defendant to fully embrace his own
activity.” Roberts raised no objections.
This appeal ensued.
II.
We review a district court’s findings regarding an ac-
ceptance-of-responsibility reduction under U.S.S.G. § 3E1.1 for
clear error. United States v. Tejas, 868 F.3d 1242, 1247 (11th Cir.
2017). We will not disturb a district court’s findings under clear
error review “unless we are left with a definite and firm conviction
that a mistake has been committed.” United States v. Cruickshank,
837 F.3d 1182, 1192 (11th Cir. 2016) (quoting United States v.
Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010)). A district court’s
“choice between two permissible views of the evidence: will rarely
constitute clear error. Id. (quoting United States v. De Varon, 175
F.3d 930, 945 (11th Cir. 1999) (en banc)). Because the “sentencing
judge is in a unique position to evaluate a defendant’s acceptance
of responsibility,” the “determination of the sentencing judge is en-
titled to great deference on review.” U.S.S.G. § 3E1.1 cmt. n.5.
Thus, we will not set aside its determination that a defendant is not
entitled to a reduction “unless the facts in the record clearly estab-
lish that the defendant has accepted responsibility.” Moriarty, 429
F.3d at 1023.
A district court’s decision as to the applicability of a guide-
lines adjustment is also subject to harmless error review. See United
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12 Opinion of the Court 22-12824
States v. Focia, 869 F.3d 1269, 1287 (11th Cir. 2017). An error is
harmless in this context when it “did not affect the district court’s
selection of the sentence imposed.” Williams v. United States, 503
U.S. 193, 203 (1992). To know that an error in this context “was
truly harmless,” we first need “knowledge that the district court
would have reached the same result even if it had decided the
guidelines issue the other way.” United States v. Keene, 470 F.3d
1347, 1349 (11th Cir. 2006). We then must determine whether the
resulting sentence would be reasonable “even if the guidelines is-
sue had been decided in the defendant’s favor.” Id. In reviewing
the reasonableness of a sentencing decision, the abuse of discretion
standard applies. United States v. Irey, 612 F.3d 1160, 1188–89 (11th
Cir. 2010) (en banc). And the burden is on the defendant to demon-
strate that his sentence is unreasonable. United States v. Rosales-
Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).
III.
A defendant may receive a two-level reduction in his base
offense level if he “clearly demonstrates acceptance of responsibil-
ity for his offense.” U.S.S.G. § 3E1.1(a). This provision “is intended
to reward those defendants who affirmatively acknowledge their
crimes and express genuine remorse for the harm caused by their
actions.” United States v. Carroll, 6 F.3d 735, 740 (11th Cir. 1993).
In deciding whether § 3E1.1(a) applies, district courts “can
consider a wide range of evidence.” United States v. Scroggins, 880
F.2d 1204, 1215 (11th Cir. 1989). The commentary to § 3E1.1 pro-
vides that the “[e]ntry of a plea of guilty prior to the
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22-12824 Opinion of the Court 13
commencement of trial combined with truthfully admitting the
conduct comprising the offense of conviction, and truthfully admit-
ting or not falsely denying any additional relevant conduct for
which he is accountable under [U.S.S.G] § 1B1.3” constitutes “sig-
nificant evidence of acceptance of responsibility” for purposes of
§ 3E1.1(a). U.S.S.G. § 3E1.1 cmt. n.3. However, this evidence
“may be outweighed by conduct of the defendant that is incon-
sistent with such acceptance of responsibility.” Id. And a defendant
acts in a manner “inconsistent with acceptance of responsibility”
when he “falsely denies, or frivolously contests, relevant conduct
that the court determines to be true.” Id. cmt. n.1(A). Therefore,
a guilty plea alone does not entitle a defendant to an adjustment
“as a matter of right.” Id. cmt. n.3. Other considerations include
“voluntary termination or withdrawal from criminal conduct or as-
sociations” and “the timeliness of the defendant’s conduct in man-
ifesting the acceptance of responsibility.” Id. cmt. n.1(B), (H). On
the other hand, we have said that district courts cannot consider a
defendant’s “pre-federal charge conduct” in deciding as to an ac-
ceptance-of-responsibility reduction. United States v. Wade, 458
F.3d 1273, 1281 (11th Cir. 2006). “The defendant bears the burden
of clearly demonstrating acceptance of responsibility.” United
States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
Roberts has failed to show that the record contains “facts
sufficient to clearly establish that [he] accepted responsibility for his
actions.” Id. Therefore, the district court’s determination is not
“without foundation,” United States v. Castillo-Valencia, 917 F.2d
494, 500 (11th Cir. 1990), and the district court has not clearly erred.
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14 Opinion of the Court 22-12824
Before overruling Roberts’s objection, the district court ex-
plained that “[n]o matter how strong the facts are,” Roberts “none-
theless [took] the position that he was but really a bit player influ-
enced by others.” And, the court explained, Roberts continued to
“minimize his involvement,” “accept some responsibility but only
a piece,” in the face of facts that prove otherwise, and explain his
involvement “in a way that blames others.” The district court
pointed to the fact that Roberts withdrew his factual objections to
the PSI only a short time before the sentencing hearing. And the
district court was also unsure as to whether Roberts “necessarily
appreciate[d]” the harm the conspiracy caused.
The record supports the district court’s conclusion. Despite
withdrawing his factual objections, Roberts maintained at the sen-
tencing hearing that Golden was the reason he got involved, that
he “absolutely had no idea of a larger scheme at hand” when he
first became involved, and that, “to [his] surprise,” the scheme “was
far bigger than [he] initially imagined” when he was arrested. Fur-
ther, Roberts stated that he “had good intentions” when he was in-
volved in the conspiracy, even though his “actions spoke other-
wise.” Roberts’s counsel also told the court that Roberts “got
swept up into romance” when he first became involved in the con-
spiracy and that it was “more of a willful ignorance situation in the
beginning.”
To be fair, Roberts did say that he now understands his past
behavior was “totally unacceptable and inappropriate” and now
recognizes that he “hurt a lot of people in [his] bad decision
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22-12824 Opinion of the Court 15
making.” Further, his counsel later explained that Roberts’s inten-
tion was “not to pass off responsibility onto Ms. Golden but to ex-
plain how he got involved with the conduct to begin with.” But
the district court, not this Court, “is in a unique position to evaluate
whether a defendant has accepted responsibility for his acts.”
United States v. Pritchett, 908 F.2d 816, 824 (11th Cir. 1990). Accord-
ingly, it is the district court’s job, not ours, to decide between two
permissible views of the evidence. See Cruickshank, 837 F.3d at
1192. The district court was within its discretion to interpret the
evidence as Roberts continuing “to blame his involvement on oth-
ers,” United States v. Shores, 966 F.2d 1383, 1388 (11th Cir. 1992), and
to conclude on that basis to overrule Robert’s objection. There-
fore, the district court did not clearly err in denying the acceptance-
of-responsibility reduction.
Roberts resists this conclusion by first arguing that the dis-
trict court erred by relying on his pre-indictment conduct in deny-
ing the reduction. But the district court did not cite Roberts’s pre-
indictment conduct in explaining its decision, and the govern-
ment’s mentioning of Roberts’s pre-indictment conduct in arguing
against the reduction does not mean that the district court based
its decision on that conduct.
Roberts next argues that the district court gave undue
weight to his factual objections and short shrift to his subsequent
withdrawal of them and his admissions. But in denying Roberts an
acceptance-of-responsibility reduction, the district court focused
on Roberts’s attempts to “minimize his involvement” and to blame
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16 Opinion of the Court 22-12824
others despite the undisputed facts of the case being otherwise.
True, the district court also mentioned Roberts’s factual objections,
but we do not think that the district court gave them undue weight
when compared to its consideration of Roberts’s statements at sen-
tencing, nor fault the district court for considering the belated na-
ture of Roberts’s apology for the full scope of his actions. See
United States v. Sammour, 816 F.3d 1328, 1341 (11th Cir. 2016).
Finally, Roberts argues that the district court was wrong in
concluding that the part of his allocution about his wife was an at-
tempt to cast blame instead of an explanation of his involvement.
Entertaining this argument, however, would have us second guess
the district court’s determination on the matter, taking us far afield
of our role in conducting clear error review, where we provide
“great deference” to the district court’s decision. Pritchett, 908 F.2d
at 824. Deciding between two permissible views of the evidence is
the district court’s prerogative, and such a decision is not a basis for
reversal here. See Cruickshank, 837 F.3d at 1192.2 Roberts has there-
fore not convinced us that the district court clearly erred below.
Further, even if Roberts was correct that the district court
clearly erred, the district court’s error would be harmless, as it “did
2 Roberts also argues that the district court based its decision on the incorrect
belief that Roberts was involved in the conspiracy since its inception because
the district court referenced Roberts’s involvement at the “outset.” But that
does not match up with the district court’s adoption of the PSI. The district
court looked “to the [PSI] as providing the facts” that it relied on for what
happened in the case (Id.), and the PSI provided that Roberts first became in-
volved in 2018, years after the conspiracy began.
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22-12824 Opinion of the Court 17
not affect the district court’s selection of the sentence imposed.”
Williams, 503 U.S. at 203. First, the district court stated that even if
the guidelines “had a provision that would allow [it] to have a
lower guideline range than what actually [it] has determined ap-
plies in this case”—presumably, a provision that allows for a reduc-
tion because of a guilty plea—“the result would be the same” be-
cause of Roberts’s unwillingness to embrace his own conduct. And
second, Roberts’s sentence “would still be reasonable” under the
resulting guidelines range. Keene, 470 F.3d at 1349. If the district
court had granted a two-level reduction, the resulting guidelines
range would be 78 to 97 months. See U.S.S.G. ch. 5, pt. A. Rob-
erts’s sentence, 97 months, comes within this range. Although we
do not automatically presume that a sentence is reasonable if it is
within the guidelines range, “we ordinarily expect such a sentence
to be reasonable. United States v. Perkins, 787 F.3d 1329, 1342 (11th
Cir. 2015). And Roberts has not carried his burden of showing that
his 97-month sentence is substantively unreasonable “in light of the
entire record, the § 3553(a) factors, and the substantial deference
afforded sentencing courts,” Rosales-Bruno, 789 F.3d at 1256, even
with an assumed guidelines range of 78 to 97 months.
Here, the district court stated that it “considered all of the”
factors found in 18 U.S.C. § 3553(a). The district court considered
Roberts’s childhood, see § 3553(a)(1), but concluded that it did not
explain or mitigate “the detailed and long nature and extensive
fraud money laundering” in which Roberts engaged. The district
court weighed the seriousness of the offense and the need for the
sentence to provide adequate deterrence both to the public and to
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18 Opinion of the Court 22-12824
Roberts, see § 3553(a)(2), especially because Roberts’s “minimizes
his culpability.” The district court also made sure to note that it
considered “the kinds of sentences available,” see § 3553(a)(3), and
the “need to avoid sentencing disparity,” see § 3553(a)(6), with the
district court saying as to the latter factor that it was hard to com-
pare Roberts’s sentence with his co-defendants because he had a
higher loss amount and failed to agree to a plea agreement.
The district court also noted the “astounding” amount of
money at issue and number of victims of the conspiracy in which
Roberts was more than a “bit player.” As detailed above, the PSI
calculated $10,147,697.40 as the intended loss attributable to Rob-
erts, and over the course of two years, Roberts opened multiple
bank accounts for sham companies and used different aliases to
launder money. With all of this in mind, Roberts’s sentence of 97
months’ imprisonment would still be reasonable under the guide-
lines range that would have resulted if the district court applied the
acceptance-of-responsibility reduction. Therefore, even if we as-
sume the district court committed error in failing to apply an ac-
ceptance-of-responsibility reduction, it was harmless. See Keene,
470 F.3d at 1349–50.
Accordingly, we affirm Roberts’s sentence.
AFFIRMED.
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