USA v. Desman Stanley

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 28, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14542
Non-Argument Calendar
________________________
D. C. Docket No. 09-60061-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DESMAN STANLEY,
Defendant-Appellant.
________________________
No. 09-14551
Non-Argument Calendar
________________________
D. C. Docket No. 09-60061-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTTY BORDEN,
Defendant-Appellant.

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_______________________
No. 09-14631
Non-Argument Calendar
________________________
D. C. Docket No. 09-60061-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELINDA LORAY,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
_________________________
(April 28, 2010)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Desman Stanley, Scotty Borden, and Melinda Loray appeal their sentences
for crimes committed in a conspiracy to commit bank fraud. Stanley, Borden, and
Loray challenge the enhancement of their sentence for victims who were
reimbursed for their losses. See United States Sentencing Guideline § 2B1.1(b)(2)
(Nov. 2008). We affirm.
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Stanley, Borden, Loray, and seven codefendants were indicted for their
crimes related to the conspiracy. Stanley was charged with and later pleaded guilty
to two crimes: conspiracy to commit bank fraud, 18 U.S.C. § 1349; and bank fraud,
id. § 1344. Borden was charged with two crimes, but he later pleaded guilty to
conspiracy to commit bank fraud, id. § 1349. Loray was charged with and pleaded
guilty to three crimes: conspiracy to commit bank fraud, id. § 1349; bank fraud, id.
§ 1344; and receipt of stolen mail, id. § 1708.
The presentence investigation reports increased the base offense levels for
Stanley, Borden, and Loray based on the number of victims they had defrauded.
Stanley’s and Loray’s presentence reports increased their base offense levels by
four points because they had defrauded more than 50 victims, U.S.S.G. §
2B1.1(b)(2)(B). Borden’s report increased his base offense level by two points
because he had defrauded more than ten victims, id. § 2B1.1(b)(2)(A)(i).
Stanley and Loray objected to the four-level enhancement, but Borden did
not object to his two-level enhancement. Stanley and Loray argued that the report
erroneously included as victims those individuals and businesses who had been
reimbursed by their banks. The district court applied the enhancements and
sentenced Stanley to 57 months of imprisonment, Borden to 27 months of
imprisonment, and Loray to 72 months of imprisonment.
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Stanley, Borden, and Loray argue that the district court erred by classifying
as victims of the conspiracy those persons and businesses that were reimbursed for
their losses, but they acknowledge that their arguments are foreclosed by our
decision in United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005). Stanley and
Borden ask this Court to revisit Lee, but “[w]e may disregard the holding of a prior
opinion only where that ‘holding is overruled by the Court sitting en banc or by the
Supreme Court.’” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009)
(quoting Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001)). The
district court did not err, much less plainly err, by enhancing the sentences of
Stanley, Borden, and Loray.
We AFFIRM the sentences of Stanley, Borden, and Loray.
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