The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 23, 2006
No. 05-16036 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00015-CR-4-SPM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LYNN YUE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 23, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Lynn Yue appeals her sentence for mail fraud, in violation of 18 U.S.C.
§ 1341, and bank fraud, in violation of 18 U.S.C. § 1344. Yue asserts the district
court erred in: (1) assessing a two-level increase in her offense level for employing
sophisticated means, pursuant to U.S.S.G. § 2B1.1(b)(9)(C); (2) assessing a two-
level increase in her offense level for obstruction of justice, pursuant to U.S.S.G.
§ 3C1.1; and (3) denying her a two-level reduction for acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1(a). The district court did not err, and we affirm.
I. DISCUSSION
Following the Supreme Court’s decision in United States v. Booker, 125 S.
Ct. 738, 765 (2005), we review sentences for reasonableness. Nevertheless, the
district court must calculate the Sentencing Guidelines correctly. United States v.
Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). Post-Booker, we review the
district court’s application of the Guidelines under the same standards as we did
pre-Booker, namely, that the district court’s interpretation of the Guidelines is
reviewed de novo and factual findings are reviewed for clear error. Id. at 1177-78.
It is necessary to determine, utilizing pre-Booker precedent, whether the district
court correctly interpreted and applied the Guidelines to determine the appropriate
advisory Guideline range. See id. at 1178. Here, Yue makes no argument as to the
reasonableness of her sentence, and only argues whether the Guidelines range was
calculated correctly. Thus, we will only address this aspect of sentencing.
A. Sophisticated Means
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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” is defined as:
especially complex or especially intricate offense conduct pertaining
to the execution or concealment of an offense. For example, in a
telemarketing scheme, locating the main office of the scheme in one
jurisdiction but locating soliciting operations in another jurisdiction
ordinarily indicates sophisticated means. Conduct such as hiding
assets or transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily
indicates sophisticated means.
U.S.S.G. § 2B1.1, comment. (n.8(B)).
Although we have not fully delineated what qualifies as “sophisticated
means,” we have held “sophisticated means involves more than minimal
planning.” United States v. Humber, 255 F.3d 1308, 1314 (11th Cir. 2001)
(holding “sophisticated means” and the now-defunct “more than minimal
planning” enhancements could be applied cumulatively).
Based on the repetition and complexity of Yue’s scheme, the district court
did not err in applying the enhancement. While working as an office manager for
Dr. Karen Chason, Yue used Dr. Chason’s financial and personal information to
(1) open new credit accounts in Dr. Chason’s name, (2) access and use Dr.
Chason’s existing credit accounts, and (3) access money held in Dr. Chason’s bank
account. Additionally, Yue would impersonate Dr. Chason to pick up merchandise
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and to receive plastic surgery paid for by Dr. Chason, as well as use Dr. Chason’s
identity to order prescription pain killers for her drug counselor. Yue also went to
great lengths to conceal her activity, including blaming other people and opening
Dr. Chason’s mail. This conduct, in the aggregate, is a sophisticated scheme both
to commit fraud and avoid detection. See U.S.S.G. § 2B1.1, comment. (n.8(B)).
Therefore, we affirm the district court as to this issue.
B. Obstruction of Justice
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. The conduct resulting in obstruction varies “widely in nature,
degree of planning, and seriousness.” U.S.S.G. § 3C1.1, comment. (n.3).
Examples of conduct where § 3C1.1 applies include when the defendant commits
perjury, provides “materially false information to a judge or magistrate,” or
provides “materially false information to a probation officer in respect to a
presentence or other investigation for the court.” U.S.S.G. § 3C1.1, comment. (n.4
(b), (f), and (h)). An example of conduct where § 3C1.1 does not apply, but may
warrant a greater sentence within the otherwise applicable Guideline range, is
when the defendant provides “incomplete or misleading information, not
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amounting to a material falsehood, in respect to a presentence investigation.”
U.S.S.G. § 3C1.1, comment. (n.5(c)).
“To justify an enhancement under Section 3C1.1, the defendant must act
willfully, which has been interpreted to mean the defendant must consciously act
with the purpose of obstructing justice.” United States v. Revel, 971 F.2d 656, 661
(11th Cir. 1992) (quotations and citation omitted). A material statement is one
“that, if believed, would tend to influence or affect the issue under determination.”
U.S.S.G. § 3C1.1, comment. (n.6). The threshold for materiality is low. United
States v. Dedeker, 961 F.2d 164, 167 (11th Cir. 1992).
Perjury, for purposes of obstruction of justice, is defined as giving “false
testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.” See
United States v. Dunnigan, 113 S. Ct. 1111, 1116 (1993), abrogated on other
grounds, United States v. Wells, 117 S. Ct. 921 (1997). “This provision is not
intended to punish a defendant for the exercise of a constitutional right” such as the
right to refuse to admit guilt, and “the court should be cognizant that inaccurate
testimony or statements sometimes may result from confusion, mistake, or faulty
memory, and, thus, not all inaccurate testimony or statements necessarily reflect a
willful attempt to obstruct justice.” U.S.S.G. § 3C1.1, comment. (n.2).
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The district court did not err in enhancing Yue’s sentence based on
obstruction of justice when Yue gave false information about her educational
background. First, despite Yue’s arguments that the misrepresentations were not
willful, there is no indication it was based on confusion, mistake, or faulty
memory. See Dunnigan, 113 S. Ct. at 1116; U.S.S.G. § 3C1.1, comment. (n.2).
Second, the misrepresentation was material. The record supports that the
magistrate relied, at least in part, on Yue’s representations concerning her
education when he determined Yue’s pretrial detention. Yue further lied about her
education to the district court under oath during the plea colloquy. Further, this
misrepresentation went beyond merely “incomplete or misleading information, not
amounting to a material falsehood, in respect to a presentence investigation.” See
U.S.S.G. § 3C1.1, comment. (n.5(c)). Thus, we affirm the district court as to this
issue.
C. Acceptance of Responsibility
“The district court is in a unique position to evaluate whether a defendant
has accepted responsibility for [her] acts, and this determination is entitled to great
deference on review. Unless a court’s determination is without foundation, it
should not be overturned on appeal.” United States v. Pritchett, 908 F.2d 816, 824
(11th Cir. 1990). “A district court’s determination that a defendant is not entitled
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to acceptance of responsibility will not be set aside unless the facts in the record
clearly establish that a defendant has accepted personal responsibility.” United
States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
Section 3E1.1 of the Sentencing Guidelines provides “[i]f the defendant
clearly demonstrates acceptance of responsibility for [her] offense, decrease the
offense level by 2 levels.” “The defendant bears the burden of clearly
demonstrating acceptance of responsibility and must present more than just a guilty
plea.” Sawyer, 180 F.3d at 1323. Adjustment is not warranted where the
defendant falsely denied relevant conduct. U.S.S.G. § 3E1.1, comment. (n.1(a)).
Moreover, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the defendant has
not accepted responsibility for [her] criminal conduct. There may, however, be
extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may
apply.” U.S.S.G. § 3E1.1, comment. (n.4). A defendant is not entitled to a
reduction for acceptance of responsibility if she acknowledges responsibility for
the offense but continued criminal conduct. United States v. Villarino, 930 F.2d
1527, 1530 (11th Cir. 1991). Further, an admission of involvement in the crime
alone does not necessarily amount to an affirmative acceptance of responsibility.
See United States v. Shores, 966 F.2d 1383, 1388 (11th Cir. 1992).
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Contrary to Yue’s assertions, the district court expressly denied the
reduction for acceptance of responsibility because she continued her deceptive
behavior of lying about her educational background. Yue was required to do more
than just plead guilty, and the district court found she actively lied to the court
while the case was ongoing. See Villarino, 930 F.2d at 1530. In addition, since
Yue received an enhancement pursuant to § 3C1.1, she is generally not entitled to a
reduction for acceptance of responsibility. U.S.S.G. § 3E1.1, comment. (n.4).
Thus, since the facts in the record do not clearly establish Yue was entitled to
acceptance of responsibility and the district court’s decision is entitled to great
deference, we hold the district court did not clearly err.
II. CONCLUSION
The district court did not err in imposing the sophisticated means and
obstruction of justice enhancements, or in denying an acceptance of responsibility
reduction. Since all of Yue’s Guideline issues fail, and Yue raises no argument
that her sentence was unreasonable, we affirm Yue’s sentence.
AFFIRMED.
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