United States v. Shaquandra Woods

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11500

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHAQUANDRA WOODS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 4:22-cr-00016-RSB-CLR-1

____________________

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2 Opinion of the Court 24-11500

Before ROSENBAUM, LAGOA, and HULL, Circuit Judges.

PER CURIAM:

After a jury trial, Shaquandra Woods appeals her conviction

and 75-month prison sentence for conspiracy to commit wire

fraud, in violation of 18 U.S.C. § 1349. Woods argues that the

district court: (1) plainly erred by permitting a material variance

between the single-conspiracy indictment and the trial evidence of

multiple conspiracies; (2) abused its discretion by admitting a

co-conspirator’s testimony about a threat Woods made; and

(3) erroneously calculated Woods’s advisory guidelines range.

After careful review, we affirm Woods’s conviction and sentence.

I. BACKGROUND

A. Woods’s Offense Conduct

During the COVID-19 pandemic, Woods, an attorney,

fraudulently applied for, or helped friends and family members

fraudulently apply for, emergency business loans.

Under the Coronavirus Aid Relief and Economic Securities

(“CARES”) Act, the Small Business Administration (“SBA”) funded

two loan programs: (1) the Economic Injury Disaster Loans

(“EIDL”) and (2) the Paycheck Protection Program (“PPP”). Both

programs required that (1) the borrowing business be in operation

before a certain date in 2020 and (2) that the loan amount be based

on its gross revenue for the twelve months preceding the

pandemic.

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The trial evidence connected Woods to twelve loan

applications, eleven of which were fraudulent. 1 Specifically,

Woods submitted four EIDL loan applications for businesses she

solely owned, including S.A. Woods Law, PLLC; EZE Trace, LLC;

EZ Legal Solutions, LLC; and S.A. Woods Enterprise, LLC.

Woods also submitted three PPP loan applications for her

businesses.

Woods also helped submit EIDL applications for:

(1) COVID Trucking, LLC, owned by her husband Quentin

Bostick, Sr.; (2) Actually Living Life Management Consulting, LLC,

owned by her friend Cleopatra Smith; (3) D’Evils Limited Co.,

owned by her husband’s nephew, Jeremial Coleman; (4) an

unincorporated sole proprietorship, owned by her cousin Kenneth

Jackson; and (5) an unincorporated sole proprietorship, owned by

her friend Courtney Gilchrist.

In broad outlines, Woods’s fraud involved creating sham

businesses, falsely reporting those businesses were in operation

prior to the pandemic, reporting false revenue for the businesses to

maximize the loan amount, and creating and submitting false

supporting documentation, including bank statements, corporate

documents, and tax records. Woods also recruited other

participants to apply for loans and, for a fee, submitted their

applications and other paperwork and either communicated

1 The government conceded that Woods’s first loan application in April 2020

for an EIDL loan of $6,500 for her law practice, S.A. Woods Law, PLLC, was

not fraudulent.

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directly with the SBA or the third-party lender on their behalf or

coached the applicants on how to do so.

Woods also worked with her tax preparer, Amber Childers,

and Woods’s cousin Ashlee Parker, an accountant with her own

tax business, to create false documents that Woods submitted in

support of fraudulent loan applications.

B. Indictment

In a second superseding indictment, a federal grand jury

charged Woods with: (1) conspiring with others “known and

unknown” to commit wire fraud, in violation of 18 U.S.C. § 1349

(Count 1); (2) four counts of making and presenting false, fictitious,

or fraudulent claims to the SBA, in violation of 18 U.S.C. §§ 287 and

2 (Counts 2-5); and (3) two counts of knowingly making and using

false writings and documents, in violation of 18 U.S.C. §§ 1001(a)(3)

and 2 (Counts 6 and 7).

With respect to the wire fraud conspiracy charged in Count

1, the second superseding indictment alleged that Woods and her

co-conspirators agreed “to obtain monies and funds owned by and

under the custody and control of the Small Business

Administration by means of false and fraudulent pretenses,

representations, and promises.” The indictment alleged that the

objects of the conspiracy were for the conspirators “to enrich

themselves by obtaining EIDL proceeds unlawfully” and for

Woods “to enrich herself by charging fees to EIDL applicants for

completing and submitting their EIDL applications, which

applications [Woods] knew to be fraudulent.”

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As to manner and means, the indictment alleged that Woods

(1) “would complete and submit online EIDL applications for

businesses purportedly owned by her and by others;” (2) “would

falsely assert in the applications that the businesses were in

existence prior to January 31, 2020;” (3) “would falsely and

fraudulently inflate and misrepresent in the applications the

businesses’ gross revenues in the 12 months preceding January 31,

2020;” (4) “would enlist the assistance of co-conspirators to create

false and fraudulent tax documents for submission to the SBA in

support of the false and fraudulent applications;” (5) “would enlist

the assistance of co-conspirators to call the SBA and falsely

represent themselves as an applicant’s employer and convey false

information to the SBA in support of the false and fraudulent

applications;” and (6) “would charge applicants approximately 10%

of any funded EIDL as a fee for her services.”

Woods entered a not guilty plea.

C. Pretrial Motion in Limine

Pretrial, Woods filed a motion in limine to prevent Parker,

Woods’s cousin and co-conspirator, from testifying about a

statement Woods made to Parker. Woods told Parker she believed

Gilchrist was cooperating with government investigators. Woods

also told Parker that Woods’s brother-in-law could “get rid of”

Gilchrist, another co-conspirator. Parker interpreted Woods’s

statement to mean Woods could have Gilchrist killed. The district

court denied Woods’s motion.

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The district court explained that evidence of a defendant’s

statement threatening a potential government witness was

regularly admitted as evidence of a defendant’s consciousness of

guilt, knowing participation in criminal activity, and lack of

mistake when engaging in criminal activity. The district court

found that, while threat evidence is prejudicial, its probative value

was not outweighed by any unfair prejudice.

The district court granted the government’s motion to

dismiss Counts 2 through 7. Count 1 went to trial.

D. Trial on Count 1 (Wire Fraud Conspiracy)

During a four-day trial, the government introduced many

exhibits and the testimony of five co-conspirators—Smith,

Gilchrist, Childers, Parker, and Coleman—and Agent Justin Lott

from the SBA Office of the Inspector General. Agent Lott

investigated the fraudulent loans.

In defense, Woods presented several character witnesses,

then testified herself and denied any wrongdoing. Woods denied

preparing and submitting loan applications for anyone else except

Gilchrist, denied being paid $10,000 to submit Gilchrist’s loan

application, and denied supplying fraudulent information or

creating false documents for any loan applications.

Woods did admit preparing loan applications for her own

businesses. But Woods claimed that she submitted multiple loan

applications with different information only because she was

following the SBA’s instructions to correct mistakes in earlier

applications. She denied intending to defraud the government.

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The jury found Woods guilty.

E. Sentencing

The presentence investigation report (“PSI”) recommended:

(1) a base offense level of 7, pursuant to U.S.S.G. §§ 2B1.1(a)(1) and

2X1.1(a); (2) a 14-level increase based on the intended loss amount

(more than $550,000, but not more than $1,500,000), pursuant to

§ 2B1.1(b)(1)(H); (3) a 2-level sophisticated means increase,

pursuant to § 2B1.1(b)(10)(C); (4) a 4-level leader or organizer role

increase, pursuant to § 3B1.1(a); (5) a 2-level obstruction of justice

increase, pursuant to § 3C1.1. Her total offense level of 29 and

criminal history category of I yielded an advisory guidelines range

of 87 to 108 months’ imprisonment.

Woods objected to the PSI’s offense-level increases for the

loss amount, sophisticated means, and role in the offense. Woods

withdrew her objection to the obstruction-of-justice increase.

Overruling Woods’s objections, the district court found Woods’s

offense level was 29 and criminal history category was I, yielding

an advisory guidelines range of 87 to 108 months.

The district court heard testimony from six favorable

character witnesses, including Woods’s family, friends and two

pastors. Taken together, they described how Woods overcame a

difficult childhood, completed her college education while a single

mother, attended law school, and became an attorney. Both

counsel presented arguments. The government requested a

sentence within the advisory guidelines range.

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In mitigation, Woods pointed to the facts that: (1) she repaid

her loans and completed 130 hours of community service since

trial; (2) Parker, the only other conspirator to serve any time,

already completed her 12-month sentence; (3) Woods had no

criminal history; and (4) despite being born to a 16-year-old,

drug-addicted mother, Woods “battled incredible odds” and,

through courage and willpower, become an attorney. During her

allocution, Woods emphasized that she could no longer be an

attorney, described seeing her mother overdose on crack cocaine,

and asked for mercy and to be “allowed to go home” to her

children.

After stating that it had considered, “through the lens of

[§] 3553(a),” the witnesses’ testimony, counsels’ arguments, the

PSI, Woods’s sentencing memorandum, and letters supporting

Woods, the district court imposed a 75-month sentence. The

district court explained that it varied downward from the advisory

guidelines range of 87 to 108 months because the sophisticated

means guidelines enhancement overrepresented the seriousness of

Woods’s offense and because Woods’s culpability was “already

reflected by the leader or organizer enhancement.” The district

court added:

You know, sometimes the guidelines get it right;

sometimes they get it wrong. Here, this is the sentence

I would give regardless of what the guidelines say. But

given that sophisticated means enhancement, I kind

of had to step back from the guidelines and say what

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is the appropriate sentence in this case, regardless of

what the guidelines say. When I think about the totality

of the circumstances, this is the sentence that I’ve

landed on as the appropriate sentence.

(Emphasis added.) The district court acknowledged that while the

sentence was below the advisory guidelines range, it was still a

“very serious sentence” that it “would give regardless of what the

guidelines say.”

In explaining the chosen sentence, the district court referred

to Woods’s history and characteristics, including her difficult

upbringing, her laudable achievements, and her supportive family

and friends. The district court stressed the seriousness of Woods’s

offense, noting that Woods “stole from the American people’s

benevolence during one of the darkest chapters in our nation’s

history” and “took from the well that was meant to give water to

those who were truly suffering.” The district court pointed out

that “it wasn’t just an incident,” rather “[i]t was a long scheme” that

“took a lot of actions,” and “when you all were caught, you told

Courtney Gilchrist, don’t worry, I’m going to come up with a

story.”

The district court also emphasized Woods’s trial testimony,

which had “sullied this courtroom . . . with falsehood after

falsehood after falsehood.” The district court described Woods as

being “one of the worst liars” the court had seen, telling obvious

lies and doubling down on them in the face of the government’s

contradictory evidence. The district court found Woods

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committed “rampant perjury,” rather than fulfill her duty of candor

as a lawyer.

After the sentence, Woods did not object to the sentence or

the manner in which it was imposed.

II. VARIANCE FROM THE INDICTMENT

Woods argues the government’s trial evidence proved

multiple separate conspiracies and thus constituted a material

variance from the indictment, which charged a single conspiracy.

We ordinarily review de novo whether a material variance

occurred between the indictment’s allegations and the evidence

presented at trial. United States v. Goldstein, 989 F.3d 1178, 1198

(11th Cir. 2021). However, because Woods asserts her material

variance argument for the first time on appeal, our review is for

plain error. See United States v. Wilson, 788 F.3d 1298, 1312 (11th

Cir. 2015).

A. Material Variance

A variance is not material if, viewing the evidence in the

light most favorable to the verdict, a reasonable jury could have

found beyond a reasonable doubt that a single conspiracy existed.

United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997); United

States v. Richardson, 532 F.3d 1279, 1284 (11th Cir. 2008). Three

factors inform that inquiry: (1) whether a common goal existed;

(2) the nature of the scheme underlying the crimes charged; and

(3) the overlap of participants. Richardson, 532 F.3d at 1284.

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As to the first factor, a jury reasonably could have found that

the co-conspirators shared a common goal—falsifying applications

to obtain PPP and EIDL loans—and each conspirator’s actions

facilitated the achievement of that goal. See Calderon, 127 F.3d at

1327 (explaining to be “common,” a goal need only be “similar or

substantially the same rather than shared or coordinate”).

“It is irrelevant that particular conspirators may not have

known other conspirators or may not have participated in every

stage of the conspiracy; all that the government must prove is an

agreement or common purpose to violate the law and intentional

joining in this goal by co-conspirators.” United States v. Edouard,

485 F.3d 1324, 1347 (11th Cir. 2007) (quotation marks omitted and

alterations adopted). The jury reasonably could have inferred that

these co-conspirators intentionally joined in the conspiracy’s

common goal and that Woods, as a “key man,” directed,

coordinated, and facilitated the venture as a whole. See Richardson,

532 F.3d at 1284-85.

As to the second factor, the trial evidence amply supported

a jury finding that the nature of the scheme was that Woods, with

assistance from her co-conspirators, would submit falsified PPP

and EIDL loan applications to the SBA or a third-party lender. The

co-conspirators assisted Woods by agreeing to be the applicant-

owners of the sham businesses, by creating false documents that

Woods submitted in support of the fraudulent loan applications,

and by falsely communicating with the SBA, as directed by Woods,

during the loan application process.

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As to the third factor, trial evidence demonstrated a

significant overlap of participants. For example, apart from the fact

that Woods worked directly and significantly with the co-

conspirators: (1) Woods and Bostick are married; (2) Woods,

Parker, and Jackson are cousins; (3) Parker, who was Gilchrist’s

sorority sister in college and prepared Gilchrist’s taxes, created a

false Schedule C for Gilchrist’s loan application at Woods’s

direction; (4) Woods and Gilchrist were friends and attended

Florida Coastal Law School together; (5) Woods and Gilchrist both

knew Smith, who worked at the law school; and (5) Childers, who

was Bostick’s and Woods’s tax preparer, falsified tax documents at

Woods’s direction for loan applications by Woods, Jackson, and

Bostick.

Based on the trial evidence of the loan-fraud conspiracy’s

common goal, underlying scheme, and overlap in participants, a

reasonable jury could have found beyond a reasonable doubt that

a single conspiracy existed. Thus, there was no material variance

from the indictment, much less plain error.

We also reject Woods’s argument that her scheme was a

“hub-and-spoke” conspiracy, with herself as the “hub” and each

co-conspirator as a wholly separate spoke, creating at least four

different conspiracies. This ignores that all of the so-called spokes

were relatives or friends of Woods, all were using the same type of

false documents to make the same type of fraudulent loan

applications, and often the co-conspirators even directly interacted

on the same loan application.

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For example, let’s take COVID Trucking’s EIDL application.

Bostick was the listed owner, Woods incorporated the sham

business and falsified the information in the application, Parker

falsified a bank statement, and Childers created a fake 1099.

Similarly, Parker also created falsified bank statements for Woods’s

and Gilchrist’s loan applications. And Childers also created fake

1099 statements for herself, Jackson, and Woods. And, of course,

Woods submitted false applications on behalf of herself, Bostick,

Gilchrist, Smith, Coleman, and Jackson. The trial evidence

revealed that the co-conspirators knew of each other’s existence

and had reason to know that they too were fraudulently receiving

funds from the SBA. There was substantial evidence that the

co-conspirators were aware of the nature and scope of Woods’s

scheme, significantly distinguishing this situation from a hub-and-

spoke or rimless-wheel conspiracy. See United States v. Seher, 562

F.3d 1344, 1367 (11th Cir. 2009); United States v. Chandler, 388 F.3d

796, 807 (11th Cir. 2004).

B. Substantial Prejudice

Our above determination that there was no material

variance “necessarily ends our inquiry . . . .” United States v. Alred,

144 F.3d 1405, 1415 (11th Cir. 1998). Nevertheless, even if a

variance arguably occurred, Woods’s claim still fails. We will

reverse a conviction based on a variance only if “the variance (1)

was material and (2) substantially prejudiced the defendant.”

United States v. Castro, 89 F.3d 1443, 1450 (11th Cir. 1996) (emphasis

added); see also Wilson, 788 F.3d at 1312 (quoting United States v.

Flynt, 15 F.3d 1002, 1005 (11th Cir. 1994)). “[T]o show substantial

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prejudice from a variance, a defendant must show that the proof at

trial differed so greatly from the charges that he was ‘unfairly

surprised and was unable to prepare an adequate defense.’” Wilson,

788 F.3d at 1312 (quoting Alred, 144 F.3d at 1415); United States v.

Caporale, 806 F.2d 1487, 1500-01 (11th Cir. 1986).

Here, the wire fraud conspiracy in Count 1 clearly charged

Woods with preparing and submitting fraudulent loan applications

for her businesses and those of her co-conspirators and enlisting her

co-conspirators to create false documents and to make false

representations to the SBA about the loan applications. The trial

evidence established Woods was involved in all of the fraudulent

loan applications. Woods could not have been surprised or unable

to prepare an adequate defense. On appeal, Woods does not even

contend that she was unfairly surprised or unable to prepare an

adequate defense.

Rather, for the first time in her reply brief, Woods argues

that, despite this Court’s long-standing precedent requiring the

defendant to show substantial prejudice in material-variance cases,

the burden as to prejudice actually rests with the government,

citing Kotteakos v. United States, 328 U.S. 750 (1946). Woods’s

Kotteakos-based argument fails for two independent reasons. First,

we do not consider issues raised for the first time in a reply brief.

United States v. Magluta, 418 F.3d 1166, 1185 (11th Cir. 2005); United

States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004).

Second, and in any event, Kotteakos articulated the general

harmless-error standard that applies “when the issue was properly

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preserved by timely objection.” See United States v. Pon, 963 F.3d

1207, 1227 (11th Cir. 2020). Here, however, our review is for plain

error, meaning that Woods, not the government, must

demonstrate prejudice to her substantial rights. See Wilson, 788

F.3d at 1312 (stating, on plain error review, that the defendant “fails

to show a variance occurred that substantially prejudiced his

rights”). As explained above, Woods has not shown substantial

prejudice arising from any material variance. 2

III. RULE 404(b) EVIDENCE

Woods challenges the district court’s admission of co-

conspirator Parker’s testimony about a threat Woods made about

co-conspirator Gilchrist.

A. Testimony Admitted

Co-conspirator Parker testified that once the FBI began

investigating the loan applications, Woods told Parker she

suspected Gilchrist “had someone on the phone with her” when

2 In timely objection criminal cases, we apply harmless error review of

nonconstitutional errors, which “requires reversal only if it resulted in actual

prejudice because it had substantial and injurious effect or influence in

determining the jury’s verdict.” United States v. Guzman, 167 F.3d 1350, 1353

(11th Cir. 1999) (quotation marks omitted); Kotteakos, 328 U.S.at 764-65. The

government bears the burden to show the error was harmless under the

Kotteakos standard. Pon, 963 F.3d at 1227; Kotteakos, 328 U.S. at 760-61. Even

if a material variance arguably occurred and Woods had timely objected at

trial, the trial evidence showed Woods was the key man and involved in all

the fraudulent loan applications, and the government thus has shown any

material-variance error was harmless.

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Woods tried to talk with Gilchrist. Later, Woods showed up at

Parker’s house, acted very nervous, patted Parker down for

listening devices, and said she believed Gilchrist had told the FBI

what they did. Parker told Woods that she had spoken to the FBI

and that the FBI knew everything about Woods.

After Parker took her daughter to cheer practice, Woods

followed Parker to a Chick-Fil-A, where they spoke in Parker’s car.

Woods was upset with Gilchrist and believed Gilchrist “had set her

up.” As to the threat, Parker testified as follows:

Q. So I’ll ask you again. Was there ever a

conversation between you and the defendant about

whether something might happen to Courtney

Gilchrist?

A. Yes. She talked about getting rid of Courtney.

Not specifically her, but she felt like her sister’s

husband could have Courtney killed.

Q. Now, were those her words? What did she

actually say?

A. Get rid of her.

Q. And how did you understand that?

A. Kill her. Get rid of her.

The district court admitted Parker’s testimony pursuant to

Federal Rule of Evidence 404(b). We review the admission of

evidence under Rule 404(b) for abuse of discretion. United States v.

Culver, 598 F.3d 740, 747 (11th Cir. 2010).

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B. Rule 404(b) Principles

Under Rule 404(b), evidence of the defendant’s other crimes,

wrongs, or acts is not admissible to prove the defendant’s character

“in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). However,

such evidence “may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Fed.

R. Evid. 404(b)(2).

When a defendant pleads not guilty, her intent becomes a

material issue, which the government may establish through

qualifying Rule 404(b) evidence. Edouard, 485 F.3d at 1345.

“[E]vidence that a defendant threatened a witness is relevant to

show consciousness of guilt, a permissible purpose under Rule

404(b).” United States v. Brazel, 102 F.3d 1120, 1152 (11th Cir. 1997);

see also United States v. Fey, 89 F.4th 903, 910-11 (11th Cir. 2023).

Rule 404(b), however, does not apply to evidence that is intrinsic

to the charged offenses. United States v. Ford, 784 F.3d 1386, 1393

(11th Cir. 2015).

Evidence of other bad acts, whether “inside or outside the

scope of Rule 404(b), must still satisfy the requirements of Rule

403.” Fey, 89 F.4th at 911. Testimony that the defendant sought to

have a witness killed is not necessarily more prejudicial than

probative. Id. at 913. The trial court must judge the threat’s

potential prejudice in the same manner as it would for other

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potentially prejudicial evidence. United States v. Gonzalez, 703 F.2d

1222, 1223 (11th Cir. 1983).

C. Analysis

The district court did not abuse its discretion by admitting

Parker’s testimony about Woods’s threat under Rule 404(b). As a

threshold matter, we reject the government’s contention that

Parker’s testimony about the threat was intrinsic evidence to which

Rule 404(b) does not apply. Parker’s testimony was extrinsic and

within the scope of Rule 404(b). See Fey, 89 F.4th at 910-11.

Woods’s threat to “get rid of” Gilchrist, even if an attempt to

conceal the fraud, was made after the conspiracy to obtain PPP and

EIDL loans through falsified applications already was completed

and was not part of the same transactions as the charged crime. See

id. at 911.

Although extrinsic evidence, Parker’s testimony was

admissible under Rule 404(b). To be admissible under Rule 404(b),

evidence of other bad acts must: (1) be relevant to an issue other

than the defendant’s character; (2) be sufficiently supported by

proof to enable a jury to find by a preponderance of the evidence

that the defendant committed the act(s); and (3) possess probative

value that is not substantially outweighed by undue prejudice and

otherwise comply with Rule 403. Edouard, 485 F.3d at 1344. Rule

404(b) is a rule of “inclusion which allows extrinsic evidence unless

it tends to prove only criminal propensity.” United States v. Sanders,

668 F.3d 1298, 1314 (11th Cir. 2012) (quotation marks omitted).

Accordingly, we view the disputed evidence “in a light most

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favorable to its admission, maximizing its probative value and

minimizing its undue prejudicial impact.” United States v. Smith,

459 F.3d 1276, 1295 (11th Cir. 2006).

As to the first prong of the Rule 404(b) test, Parker’s

testimony about Woods’s threat, which was prompted by Woods’s

fears that Gilchrist was cooperating with the FBI, showed Woods

wanted to eliminate any possibility of the government finding out

about their loan-fraud conspiracy. As such, evidence of Woods’s

threat to Gilchrist was relevant to show consciousness of guilt,

knowledge of the criminal activity, and lack of mistake. See

Eduoard, 485 F.3d at 1344; Brazel, 102 F.3d at 1152.

The second prong is also satisfied. Parker, an accomplice in

the conspiracy who created falsified bank statements for Woods

and other co-conspirators, provided sufficient proof of the extrinsic

act to support the jury’s conclusion that Woods threatened “to get

rid of” Gilchrist in an attempt to cover up the conspiracy. Parker

gave a detailed account of how Woods showed up at her house,

patted her down, believed that Gilchrist set her up and told the FBI

about the conspiracy, and how Woods followed Parker to her

daughter’s cheer practice and then to Chick-Fil-A before making

the threat.

Woods describes Parker’s testimony about the threat as

“false” and “clearly improbable.” But, in denying Woods’s motion

for a new trial, the district court determined that the government’s

cooperating witnesses were “remarkably credible.” Furthermore,

“the uncorroborated word of an accomplice . . . provides a

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sufficient basis for concluding that the defendant committed

extrinsic acts admissible under Rule 404(b).” United States v.

Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) (quotation marks

omitted).

As for the third prong, the probative value of Parker’s

testimony is not substantially outweighed by its possible prejudicial

effect. See Fed. R. Evid. 403. The evidence was highly probative of

Woods’s consciousness of guilt, knowing participation in the fraud

scheme, and the absence of mistake. Evidence that Woods was

upset and, in front of Parker, contemplated “[g]et[ting] rid of”

Gilchrist after concluding Gilchrist was cooperating with the FBI’s

investigation undermined Woods’s own trial testimony that she

was entirely unaware of, and had nothing to do with, the

fraudulent loan applications and false documents created to

support them. While the evidence of Woods’s threat was

prejudicial, it was not unfairly so and was not more prejudicial than

probative. See Frey, 89 F.4th at 913; United States v. Nerey, 877 F.3d

956, 976-77 (11th Cir. 2017).

IV. GUIDELINES CALCULATIONS

Woods argues the district court erred in calculating her

advisory guidelines range as 87 to 108 months. She challenges the

calculation of the loss amount under U.S.S.G. § 2B1.1(b) and the

4-level organizer-leader role increase under § 3B1.1(a). On appeal,

the parties agree that if Woods’s objections to the calculations had

been sustained, her advisory guidelines range would have been 46

to 57 months’ imprisonment. The district court’s 75-month

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24-11500 Opinion of the Court 21

sentence thus would have constituted an 18-month variance from

the top of that range.

A. Keene Statement

The problem for Woods is that the district court, after

imposing the sentence, stated three times that it would have

imposed the same 75-month sentence regardless of the guidelines

calculations. Under our precedent, a guidelines calculation error is

harmless when (1) the district court stated that it would have

imposed the same sentence, even if it had decided the guidelines

issue in the defendant’s favor (sometimes called a “Keene

statement”), and (2) assuming an error occurred and the lower

guidelines range applied, the sentence is substantively reasonable.

United States v. Grushko, 50 F.4th 1, 18 (11th Cir. 2022); United States

v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).

Woods does not dispute that the district court made a Keene

statement. 3 And, as discussed below, the 75-month sentence was

substantively reasonable.

B. Substantive Reasonableness

The substantive reasonableness of a sentence is measured

based on the totality of the circumstances and considering the 18

3 Woods argues Keene “represents the view of a substantial minority of the

Circuits” and “should be abandoned by this Circuit.” Under our prior panel

precedent rule, we are bound by Keene. See United States v. Archer, 531 F.3d

1347, 1352 (11th Cir. 2008).

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22 Opinion of the Court 24-11500

U.S.C. § 3553(a) factors. 4 United States v. Irey, 612 F.3d 1160, 1189

(11th Cir. 2010) (en banc). While “the district court has discretion

to impose a sentence outside of the guideline range, a major

variance requires a more significant justification than a minor one.”

Grushko, 50 F.4th at 20 (concluding, in a Keene statement case, that

a 58-month upward variance from the defendant’s alternative

advisory guidelines range was substantively reasonable). We do

not presume that a sentence outside the advisory guidelines range

is unreasonable. Id.

The district court thoroughly explained why it chose a 75-

month sentence “regardless of what the guidelines say.” The

district court emphasized that: (1) Woods’s offense was not a single

incident of fraud, but rather “a long scheme,” with many actions

taken over a long period of time; (2) Woods’s offense was

“immoral” because she stole federal funds meant “to help real

businesses” that were “truly suffering” survive the COVID-19

pandemic, one of the country’s “worst economic disasters”;

(3) once the conspirators were “caught,” Woods told Gilchrist not

4The § 3553(a) factors include: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need for the

sentence to reflect the seriousness of the offense, promote respect for the law,

and provide just punishment for the offense; (3) the need for deterrence;

(4) the need to protect the public; (5) the need to provide the defendant with

needed education or vocational training or medical care; (6) the kinds of

sentences available; (7) the sentencing guidelines range; (8) pertinent policy

statements of the sentencing commission; (9) the need to avoid unwarranted

sentencing disparities; and (10) the need to provide restitution to victims. 18

U.S.C. § 3553(a).

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24-11500 Opinion of the Court 23

to worry because Woods was “going to come up with a story”;

(4) Woods repeatedly and blatantly lied during her trial testimony;

and (5) by stealing from the American people and committing

perjury in court, Woods violated the public trust and her duty of

candor as a lawyer.

The district court’s explanation was amply supported by the

trial record and was more than sufficient to justify an 18-month

upward variance. See id.

Further, the record belies Woods’s claim that the district

court “failed to recognize” her remarkable background and

personal characteristics. The district court heard testimony from

Woods’s character witnesses, Woods’s allocution, and the parties’

arguments and explicitly considered Woods’s sentencing

memorandum, character letters, and the PSI, all of which together

described in detail Woods’s difficult childhood and how she

overcame it to become a college graduate, a lawyer, a good mother

to her children, and a valued member of her community. During

the sentencing, the district court referred to Woods’s background

and positive personal characteristics several times. It noted that her

witnesses spoke glowingly about her; that Woods “overcame so

much,” “attained a legal position,” and had “been successful at

everything [she had] done in [her] life”; and that Woods is “a good

mother” who worked with the homeless. The district court agreed

with Woods’s pastor that “the dichotomy here is so difficult”

because despite all the good things Woods did in her life, “in this

crucible moment,” she took “from the well that was meant to give

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24 Opinion of the Court 24-11500

water to those who were truly suffering.” There is no merit to

Woods’s claim that the district court “trivialized” or “fail[ed] to

adequately consider” her history and characteristics.

V. CONCLUSION

For these reasons, we affirm Woods’s conviction and

75-month sentence.

AFFIRMED.