The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10419 JAN 25, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:09-cr-20444-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY DEONARINESINGH,
a.k.a. Red,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 25, 2011)
Before WILSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Randy Deonarinesingh appeals his 97-month sentence, imposed after he
pleaded guilty to conspiring to commit bank fraud, make and possess counterfeit
securities, and transfer an implement designed for making counterfeit securities, in
violation of 18 U.S.C. § 371, and to bank fraud, in violation of 18 U.S.C. § 1344.
He argues that the district court erred in (1) finding that he was subject to a four-
level increase for being an organizer or leader, pursuant to U.S.S.G. § 3B1.1(a);
(2) imposing a two-level increase for sophisticated means, pursuant to U.S.S.G. §
2B1.1(b)(9)(C); and (3) determining that the total number of victims exceeded
fifty, pursuant to U.S.S.G. § 2B1.1(b)(2)(B). He also contends that his sentence
was substantively unreasonable.
I.
A defendant’s role as an organizer or leader is a factual finding that we
review for clear error. United States v. Jimenez, 224 F.3d 1243, 1250–51 (11th
Cir. 2000). We will not find clear error unless “‘we are left with a definite and
firm conviction that a mistake has been committed.’” United States v. Crawford,
407 F.3d 1174, 1177 (11th Cir. 2005) (quoting Glassroth v. Moore, 335 F.3d
1282, 1292 (11th Cir. 2003)).
To assess whether a defendant was an “organizer or leader of a criminal
activity,” we consider several factors, including:
(1) the exercise of decision making authority, (2) the nature
of participation in the commission of the offense, (3) the
recruitment of accomplices, (4) the claimed right to a larger
share of the fruits of the crime, (5) the degree of
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participation in planning or organizing the offense, (6) the
nature and scope of the illegal activity, and (7) the degree
of control and authority exercised over others.
United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir. 2006) (citing U.S.S.G. §
3B1.1 cmt. n.4). Not all of these considerations need to be present. United States
v. Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005) (per curiam). “Section 3B1.1
requires the exercise of some authority in the organization, the exertion of some
degree of control, influence, or leadership.” United States v. Yates, 990 F.2d
1179, 1182 (11th Cir. 1993) (per curiam) (quoting United States v. Brown, 944
F.2d 1377, 1385 (7th Cir. 1991)).
Deonarinesingh argues that, at most, he manufactured or supplied the
counterfeit checks but that he did not engage in the organization or management of
the conspiracy or its participants. An United States Secret Service agent testified
that Deonarinesingh specifically instructed employees of check cashing stores to
give him checks drawn on small businesses’ accounts from specific banks and for
specific amounts. Then, either the store’s employees or his recruiters would give
the checks to Deonarinesingh, at which point he would make the counterfeit
checks. Finally Deonarinesingh would give the checks to his recruiters, who
would drive check passers to the banks that he indicated and would bring the
money back to him.
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On this record, Deonarinesingh had a leadership role in the conspiracy.
While most of the conspiracy’s participants did not know each other, they knew
Deonarinesingh and described him as the “boss.” Accordingly, the district court
did not clearly err in concluding that Deonarinesingh was an organizer or leader of
the conspiracy under U.S.S.G. § 3B1.1(a).
II.
This Court reviews a finding that a defendant used “sophisticated means”
for clear error. United States v. Robertson, 493 F.3d 1322, 1329–30 (11th Cir.
2007). The Guidelines state that two levels are added to a defendant’s base
offense level “if the offense involved sophisticated means.” U.S.S.G §
2B1.1(b)(9)(c). “Sophisticated means” refers to “especially complex or especially
intricate offense conduct pertaining to the execution or concealment of an
offense,” and ordinarily includes conduct like hiding assets or transactions
“through the use of fictitious entities, corporate shells, or offshore financial
accounts.” U.S.S.G. § 2B1.1 cmt. n.8(B).
Accordingly, Deonarinesingh argues the district court clearly erred in
finding he used sophisticated means because there was nothing especially complex
or intricate about his conduct. He contends that at best, he used a widely available
program like Adobe Photoshop, a scanner, a computer, and widely available blank
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check forms to create counterfeit checks, and that there was no evidence that he
engaged in any complex financial transactions.
But the fact that Deonarinesingh did not use offshore bank accounts or route
transactions through fictitious business entities is unavailing. See United States v.
Campbell, 491 F.3d 1306, 1315–16 (11th Cir. 2007) (affirming sentence and
holding in tax case that use of campaign accounts and credit cards issued to other
individuals constituted sophisticated means designed to conceal defendant’s fraud
from authorities). And “[t]here is no requirement that each of a defendant’s
individual actions be sophisticated in order to impose the enhancement. Rather, it
is sufficient if the totality of the scheme was sophisticated.” United States v.
Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010).
The district court did not clearly err in finding Deonarinesingh used
sophisticated means. Deonarinesingh specifically told employees of check
cashing stores that he wanted checks that were drawn on small businesses and
from specific banks for amounts between $800 and $1,000. He personally
manufactured counterfeit checks, told recruiters and check passers where to
negotiate checks, and called banks to confirm that there was money in the
accounts. The scheme took years of planning, coordination, and efforts of the
many individuals involved in the criminal operation.
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Arguably, no single aspect of Deonarinesingh’s activity was itself
sophisticated, but in light of the nature and extent of his entire scheme, we have no
“definite and firm conviction” that the district court committed a mistake when it
enhanced Deonarinesingh’s sentence for sophisticated means. See United States v.
Cook, 336 Fed App’x 875, 879 (11th Cir. 2009) (per curiam) (no clear error where
counterfeit check fraud conspiracy “employed a number of procedures to ensure
that the victim banks and account holders would not realize what was
happening”).
III.
A defendant’s base offense level is increased by four levels if the relevant
offense involved fifty or more victims. U.S.S.G. § 2B1.1(b)(2)(B). A “victim” is
“any person who sustained any part of the actual loss determined under subsection
(b)(1).” U.S.S.G. § 2B1.1 cmt. n.1. The Guidelines define “actual loss” as
“reasonably foreseeable pecuniary harm that resulted from the offense.” Id. at
n.3(A)(i).
Deonarinesingh contends that there were only two victims, Bank Atlantic
and Wachovia. He argues we should follow the reasoning in United States v.
Yagar, 404 F.3d 967 (6th Cir. 2005), and find the individual account holders were
not “victims” because the banks fully reimbursed them for their temporary losses.
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In United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005), this Court declined to
adopt the reasoning of Yagar because it did “not comport with the Guidelines.”
Instead, we held that victims who were reimbursed for their temporary losses still
counted as victims under the Guidelines. Id. at 894–95. We may not disregard the
holding of a prior Eleventh Circuit opinion unless the Supreme Court, or this
Court sitting en banc, overrules that opinion. United States v. Kaley, 579 F.3d
1246, 1255 (11th Cir. 2009).
The testimony of the bank investigator established that well over
fifty individual account holders were defrauded, and under our precedent in Lee,
those individual account holders qualify as victims for purposes of U.S.S.G
§ 2B1.1(b)(2)(B). We thus find no reversible error in the district court decision.
IV.
Deonarinesingh was sentenced to 97-months’ imprisonment, which was at
the low end of the guidelines range of 97 to 121 months. The district court did not
abuse its discretion by sentencing Deonarinesingh at the low end of the guidelines
range.
We review sentences for reasonableness, using an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).
When evaluating the “substantive reasonableness” of a sentence, we consider the
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totality of the circumstances. Id. On appeal, the party challenging the sentence
bears the burden of establishing that the sentence is unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). We determine whether
the sentence is substantively reasonable based on the factors in 18 U.S.C.
§ 3553(a). Gall, 552 U.S. at 51, 128 S. Ct. at 597. While a within-guidelines
sentence is not per se reasonable, we ordinarily expect it to be reasonable. Talley,
431 F.3d at 788.
Deonarinesingh argues his sentence is unreasonable because his co-
defendants were given lower sentences. But we have held that “[d]isparity
between the sentences imposed on codefendants is generally not an appropriate
basis for relief on appeal.” United States v. Regueiro, 240 F.3d 1321, 1325–26
(11th Cir. 2001) (per curiam). “While § 3553(a)(6) speaks of ‘the need to avoid
unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar conduct,’ the provision is more concerned with
the unjustified differences across judges or districts than between co-defendants in
a single case.” United States v. Edinson, 209 Fed App’x 947, 949 (11th Cir. 2006)
(per curiam) (quoting United States v. Boscarino, 437 F.3d 634, 638, (7th Cir.
2006)). Moreover, Deonarinesingh has failed to show that his 97-month sentence
was unreasonable compared to the sentences of his co-defendants, especially given
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his extensive level of participation in the offense and his criminal history.
AFFIRMED.
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