The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10621 ELEVENTH CIRCUIT
NOVEMBER 2, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 1:08-cr-00478-JOF-GGB-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ORLANDO KING,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 2, 2011)
Before BARKETT, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
Orlando King appeals his convictions and sentences for conspiracy to
commit bank fraud, in violation of 18 U.S.C. § 1349, and aggravated identity theft,
in violation of 18 U.S.C. § 1028A. On appeal, he raises four challenges to his
convictions: (1) the district court abused its discretion when it denied his motion
to withdraw his guilty plea; (2) there was an insufficient factual basis as to his
aggravated identity theft conviction; (3) the court improperly denied his motion
for a continuance; and (4) his right to a speedy trial was violated. King also raises
four challenges to his sentences: (1) the court’s loss calculation was clearly
erroneous; (2) the court clearly erred in applying a two-level sophisticated means
sentencing enhancement under U.S.S.G. § 2B1.1(b)(9); (3) the court clearly erred
in applying a four-level role enhancement under U.S.S.G. § 3B1.1; and (4) the
court clearly erred in applying a two-level obstruction of justice enhancement
under U.S.S.G. § 3C1.1. For the reasons set forth below, we affirm King’s
convictions and sentences.
I.
King and his codefendant, Harold Wardlaw, opened business checking
accounts at a number of banks and deposited stolen checks into the accounts.
After obtaining a stolen check, they would incorporate a business in the name of
the check’s payee with the Georgia Secretary of State and use the paperwork from
2
the Secretary of State to open a business checking account in the payee’s name.
They and their co-conspirators would then deposit the stolen check into the
newly-opened bank account, withdraw money, and make wire transfers from the
accounts. King and Wardlaw’s agreement as to the proceeds was that Wardlaw
earned 5% for opening the bank accounts and depositing the stolen checks.
Wardlaw recruited co-conspirators to assist him in opening bank accounts,
depositing checks, and withdrawing funds, and these co-conspirators turned over
most of the money from the accounts to Wardlaw. The total intended loss from
the stolen checks, an unauthorized credit line, unauthorized loans, and three stolen
checks that had not yet been negotiated was $1,617,750.70. The actual loss was
$919,436.26.
In a 21-count superseding indictment, King was charged with, among other
things, conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count
1), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count 14).
The district court allowed King to represent himself and directed his attorney to
act as standby counsel. On the first day of trial, King moved for a continuance to
give him more time to prepare. He had received witnesses’ prior statements from
the government the week before and a DVD of a witness interview the day before.
He had also had trouble communicating with standby counsel from pretrial
3
detention, and he had not received all of the evidence that standby counsel had
sent him. The government agreed to make copies of the missing evidence for him.
The court nonetheless continued with the trial. On the second day of trial, King
asked that standby counsel be appointed to represent him. The court granted a
one-day continuance and stated that it would allow counsel to take recesses
throughout the trial when issues arose that he had not had the chance to review.
The next day, the government and King indicated that they had reached a
plea agreement, under which King pleaded guilty to Counts 1 and 14. The
government agreed that the U.S. Attorney for the Northern District of Georgia
would not bring criminal charges against King’s mother for her involvement in
filing liens against the judges, attorneys, and case agent in this case.
At the plea colloquy, King was placed under oath, and he testified that he
had had enough time to discuss the charges against him with his attorney, was
satisfied with his attorney’s advise and representation, and had discussed the plea
agreement with his attorney before signing it. Nobody had forced or threatened
King to get him to sign the plea agreement, and nobody had made any promises to
him that were not contained in the plea agreement. The government explained the
elements of the charges in Counts 1 and 14, and King testified that he had no
questions about the charges, and he understood that he was giving up a number of
4
rights by pleading guilty. Finally, King testified that he had committed the acts
alleged in Counts 1 and 14 of the indictment. The government presented its
factual basis, and King agreed that, if the case went to trial, the government would
be able to prove that factual basis. After finding that he was pleading guilty
knowingly and voluntarily and that the plea was supported by an independent
factual basis, the court accepted King’s guilty plea.
King and his attorney both filed motions to withdraw the guilty plea,
alleging that the plea was involuntary because King was threatened and under
duress when he pleaded guilty. Judge Jack Camp held an ex parte hearing on the
motion, at which King stated that his attorney had told him that the government
would indict his family members if he did not plead guilty. His attorney stated
that he had never told King that if he did not plead guilty, his family members
would be indicted. Nor had he told King that he should consider the investigation
of his family members when deciding whether to plead guilty. The government
filed a response.
Camp denied the motion, explaining that King had testified that he
understood the charges against him, had committed the acts charged in the
indictment, had not been forced or threatened to plead guilty, and was satisfied
with his attorney’s advice and representation. He had not shown that these
5
statements were false, and therefore, King had pleaded knowingly, voluntarily,
and with the close assistance of counsel. Additionally, denying the motion would
conserve judicial resources and prevent the government from being prejudiced.
King filed a motion for reconsideration, after which, his case was reassigned
to Judge J. Owen Forrester because a felony criminal complaint had been filed
against Judge Camp. Judge Forrester denied the motion for reconsideration after
de novo review.
In preparing the PSI, the probation officer assigned King a base offense
level of 7 for Count 1, a 16-level enhancement under U.S.S.G. § 2B1.1(b)(1)(I)
because the total loss was over $1 million, a 2-level enhancement under
§ 2B1.1(b)(2)(A) because there were ten or more victims, a 2-level sophisticated
means enhancement under § 2B1.1(b)(9)(C), a 4-level role enhancement under
§ 3B1.1(a), and a 2-level obstruction of justice enhancement under § 3C1.1. The
obstruction of justice enhancement was due to liens King had filed against the
prosecutor, case agent, district court clerk, and a number of judges after he was
indicted. King’s total offense level was thus 33, and his guideline range for Count
1 was 135 to 168 month’s imprisonment. He was also subject to a mandatory
two-year term of imprisonment for Count 14, to run consecutively to the sentence
imposed for Count 1. King objected to the 16-level enhancement for the intended
6
loss over $1 million, the sophisticated means enhancement, the role enhancement,
and the obstruction of justice enhancement. As to the intended loss, King only
objected to being held responsible for the losses in Counts 6, 10-12, 17, and 21.
At the sentencing hearing, U.S. Postal Inspector Jessica Owen testified that
she had executed a search warrant at King’s house, located at 577 Rankin Street.
Prior to executing the search warrant, she had found mail with King’s name on it
in the trash at that address. Additionally, county tax records showed that King
owned the house, and Wardlaw and King’s roommate both told Owen that King
lived in the house. At King’s house, Owen found numerous checks and receipts
made out to Insurance Services Office, Sealy, BFP Potomac Tower, Reuters
America, Madison Tower Associates. She also found a sheet of paper with “LP”
and the account number for the 200 Park LP bank account written on it and three
checks that had not yet been negotiated. Finally, Owen testified that Wardlaw told
her that King gave him all of the checks he gave to their co-conspirators to
deposit. The court found that an intended loss amount of $1,617,750.70 was
supported by a preponderance of the evidence.
As to the sophisticated means enhancement, the court explained that
obtaining stolen mail, filing articles of incorporation, depositing the checks, and
making wire transfers constituted sophisticated means. Next, the court overruled
7
King’s objection to the role enhancement because: (1) the conspiracy could not
have occurred without King; and (2) even if King was correct that Wardlaw was
also a leader, the enhancement could still be applied to King for his leadership
role. As to the obstruction of justice enhancement, Owen testified that the liens
were filed with the Kentucky Secretary of State, which she knew because King
sent a copy of the liens to her and to the U.S. Attorney’s Office in Kentucky.
Either King or the U.S. Attorney’s Office in Kentucky had indicated that the liens
were filed in Kentucky. The court found that the liens were worthless, but it
overruled King’s objection because he had intended to influence the officials to
whom he sent the liens. The court then sustained an objection King made to the
enhancement for the number of victims, making King’s guideline range 108 to 135
months’ imprisonment for Count 1. The court sentenced King to 108 months for
Count 1 and 24 months for Count 14, to run consecutive. King renewed his
objections.
II.
We review a district court’s decision to deny a motion to withdraw a guilty
plea for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298
(11th Cir. 2006). The district court does not abuse its discretion unless its
decision is “arbitrary or unreasonable.” Id. (quotation omitted). When a party
8
does not object to a judge’s alleged bias in the district court, we review for plain
error. United States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010), cert.
denied, 131 S.Ct. 1840 (2011). The defendant must prove plain error, which exists
where: (1) there was an error; (2) that was plain; (3) that affected the defendant’s
substantial rights; and (4) the error “seriously affected the fairness of the judicial
proceedings.” Id. (quotation omitted). An error generally only affected the
defendant’s substantial rights if it “affected the outcome of the district court
proceedings.” Id. at 1382 (quotations omitted). Thus, the defendant “must
establish a reasonable probability of a different result but for the error.” Id.
(quotation omitted).
The district court may allow a defendant to withdraw a guilty plea after the
court has accepted the plea but before it has imposed a sentence if “the defendant
can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P.
11(d)(2)(B). The district court “may consider the totality of the circumstances
surrounding the plea.” Brehm, 442 F.3d at 1298 (quotation omitted). We consider
four factors when reviewing the district court’s decision: “(1) whether close
assistance of counsel was available; (2) whether the plea was knowing and
voluntary; (3) whether judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed to withdraw his
9
plea.” Id. (quotation omitted). A guilty plea is knowing and voluntary if the
defendant entered the plea without coercion and with an understanding of the
nature of the charges and the consequences of the plea. United States v. Brown,
586 F.3d 1342, 1346 (11th Cir. 2009), cert. denied, 130 S.Ct. 2403 (2010). When
a defendant has received close assistance of counsel and pleaded guilty knowingly
and voluntarily, we have declined to give considerable weight or attention to the
third and fourth factors. United States v. Gonzalez-Mercado, 808 F.2d 796, 801
(11th Cir. 1987).
“There is a strong presumption that the statements made during the [plea]
colloquy are true.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
The defendant “bears a heavy burden” to show that statements made under oath at
a plea colloquy were false. United States v. Rogers, 848 F.2d 166, 168 (11th Cir.
1988). It is up to the district court to determine “[t]he good faith, credibility and
weight of a defendant’s assertions in support of a motion” to withdraw a guilty
plea. Brehm, 442 F.3d at 1298 (quotation omitted).
The district court did not abuse its discretion in denying King’s motion to
withdraw his guilty plea. First, King had close assistance of counsel leading up to
his plea. He testified during his plea colloquy that he had had enough time to
discuss the charges against him with his attorney, was satisfied with his attorney’s
10
advice and representation, and had discussed the plea agreement with his attorney
before signing it. In ruling on the motion to withdraw, the court explained that it
accepted these statements as true, which was within its discretion. See Brehm, 442
F.3d at 1298.
Second, King’s guilty plea was knowing and voluntary. He testified during
his extensive plea colloquy that nobody had forced or threatened him to get him to
sign the plea agreement, nor did anyone make any promises to him that were not
contained in the plea agreement. In ruling on the motion to withdraw, the court
found that King had not shown these statements to be false, which was within its
discretion. See id. King also argues on appeal that he felt threatened and coerced
to plead guilty because: (1) the court prevented him from preparing a meaningful
defense by denying his motion for a continuance; and (2) he feared that his family
members would be prosecuted if he did not plead guilty. As to the first, argument,
the court recessed the trial when he asked that standby counsel be appointed to
represent him, and it stated that it would allow counsel to take recesses during the
trial if anything arose that he had not had the chance to review. As to the second
argument: (1) King testified that no one made him promises not contained in the
plea agreement; (2) the plea agreement only protected his mother from
prosecution; and (3) his attorney stated that he never told King that pleading guilty
11
would protect his family members. Therefore, these claims are not supported by
the record.
The court also ensured that King understood the nature of the charges and
the consequences of pleading guilty. After the government explained the elements
of the offenses, King testified that he did not have any questions about the
charges. King also testified that he had committed the acts alleged in the
indictment and that the government could present evidence to support the factual
basis that it presented to the court. Based on these admissions and testimony, the
court’s finding that King pleaded guilty knowingly and voluntarily was not
arbitrary or unreasonable. See Brehm, 442 F.3d at 1298. As to the consequences
of his plea, King testified that he understood that he was giving up a number of
rights by pleading guilty, the possible penalties, and the sentencing process.
King’s statements at the plea colloquy are presumed to be true. See Medlock, 12
F.3d at 187. Therefore, King pleaded guilty knowingly and voluntarily.
Because King had close assistance of counsel and pleaded guilty knowingly
and voluntarily, we need not consider whether judicial resources would be
conserved or whether the government would be prejudiced if King were allowed
to withdraw his plea. See Gonzalez-Mercado, 808 F.2d at 801. However, these
factors also weigh in favor of affirming the court’s denial of the motion. Judicial
12
resources would not be conserved because the government would again have to
prepare for King’s trial and pay the travel expenses of its out-of-state witnesses.
The government would be prejudiced because one of its witnesses has died since
the first day of King’s trial, and it would therefore be unable to present the
witness’s live testimony to the jury. Based on the above, the district court did not
abuse its discretion in denying King’s motion to withdraw his guilty plea.
Finally, King’s argument that we should presume that Judge Camp abused
his discretion in denying the motion to withdraw the guilty plea is without merit.
King must show plain error to succeed on this argument because he did not argue
that Judge Camp may have been biased or impaired before the district court. See
Rodriguez, 627 F.3d at 1380. King has not established that Judge Camp erred in
denying the motion because, as discussed above, it was not an abuse of discretion
to do so. King has cited no evidence that Judge Camp denied the motion due to
bias or impaired judgment. Nor has King presented any law in support of his
assertion that we should per se find an abuse of discretion. Moreover, even if
King could show an error that was plain, he has not shown that his substantial
rights were affected because there is no “reasonable probability of a different
result but for the error.” Rodriguez, 627 F.3d at 1382 (quotation omitted). Judge
Forrester reviewed King’s motion to withdraw his guilty plea de novo and found
13
that King had pleaded guilty knowingly and voluntarily based on his statements
during the plea colloquy. Based on the above, the district court did not abuse its
discretion or commit plain error in denying King’s motion to withdraw his guilty
plea.
III.
We review a district court’s acceptance of a guilty plea for an abuse of
discretion. United States v. Frye, 402 F.3d 1123, 1126 (11th Cir. 2005). Although
a defendant waives nonjurisdictional defects by pleading guilty, he may attack the
knowing and voluntary nature of his plea on appeal. Wilson v. United States, 962
F.2d 996, 997 (11th Cir. 1992). The sufficiency of the evidence supporting a
guilty plea is nonjurisdictional. United States v. Viscome, 144 F.3d 1365, 1370
(11th Cir. 1998). Under this rule, a defendant also may not argue “that his conduct
did not meet the elements of the charges.” United States v. Evans, 478 F.3d 1332,
1339 n.7 (11th Cir. 2007).
King waived his challenge to the sufficiency of the evidence in support of
his guilty plea to aggravated identity theft. The sufficiency of the evidence
supporting his conviction is nonjurisdictional. See Viscome, 144 F.3d at 1370.
Because King does not argue that an insufficient factual basis rendered his plea
14
involuntary, we will not consider the merits of this claim. See Wilson, 962 F.2d at
997.
IV.
A defendant waives all nonjurisdictional defects in his proceedings when he
“knowingly, voluntarily, and with the benefit of competent counsel” pleads guilty.
United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984). Jurisdictional errors
implicate “a court’s power to adjudicate the matter before it.” United States v.
Peter, 310 F.3d 709, 712 (11th Cir. 2002). “Whether a claim is ‘jurisdictional’
depends on whether the claim can be resolved by examining the face of the
indictment or the record at the time of the plea without requiring further
proceedings.” United States v. Tomeny, 144 F.3d 749, 751 (11th Cir. 1998)
(quotation omitted). For example, a claim that an indictment did not charge an
offense is jurisdictional. Id. A speedy trial violation is nonjurisdictional. Yunis,
723 F.2d at 796.
As discussed above, King pleaded guilty knowingly, voluntarily, and with
close assistance of counsel. See Yunis, 723 F.2d at 796. Thus, he waived review
of the denial of his motion for a continuance and of any speedy trial violation,
15
which are nonjurisdictional defects. See Tomeny, 144 F.3d at 751. Therefore, we
will not review these claims.
V.
We review a district court’s loss calculation for clear error. United States v.
Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997). Clear error review is deferential,
“and we will not disturb a district court’s findings unless we are left with a definite
and firm conviction that a mistake has been committed.” United States v.
Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010) (quotations omitted). If the
defendant challenges a factual basis for his sentence, the government must
establish “the disputed fact by a preponderance of the evidence” using “reliable
and specific evidence.” Sepulveda, 115 F.3d at 890 (quotations omitted). The
court may base its factual findings on “facts admitted by a defendant’s plea of
guilty, undisputed statements in the [PSI], or evidence presented at the sentencing
hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).
A defendant who commits a theft offense receives a 12-level enhancement if
the loss is more than $200,000, a 14-level enhancement if the loss is more than
$400,000, and a 16-level enhancement if the loss is more than $1,000,000.
U.S.S.G. § 2B1.1(b)(1)(G)-(I). The loss amount “is the greater of actual loss or
intended loss.” Id. § 2B1.1, comment. (n.3). “[T]he district court may hold all
16
participants in a conspiracy responsible for the losses resulting from the
reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy.”
United States v. Dabbs, 134 F.3d 1071, 1082 (11th Cir. 1998).
The district court did not clearly err in applying a 16-level enhancement for
a loss over $1,000,000. King only challenges the losses as to Counts 6, 10-12, 17,
and 21, and any arguments as to the remaining counts are thus abandoned. See
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (stating that a
party abandons an issue not raised in its initial brief). These losses were in
furtherance of the conspiracy because they resulted from King’s co-conspirators
depositing stolen checks and withdrawing funds from the accounts into which the
checks were deposited, which was the aim of the conspiracy. See Dabbs, 134 F.3d
at 1082.
Additionally, Owen’s testimony established that the losses were reasonably
foreseeable to King. She testified that Wardlaw stated that King provided him
with the checks that he gave to their co-conspirators to deposit. Additionally, she
identified documents connected to the transactions in Counts 6, 10-12, 17, and 21,
and three checks that had not been negotiated, which were found in King’s house.
Specifically, Owen identified a receipt for and copy of the $143,359.29 check to
Insurance Services Office (Count 6); the invoices and receipts for the $161,681.95
17
and $15,336.80 checks to Sealy, Inc. (Count 10); the $114,458.37 check to BFP
Potomac Tower (Count 11); a copy of the $190,910.12 check to Reuters America
(Count 12); receipts showing a $93,167.91 deposit, which she determined was of
the check to Madison Tower Associates based on the date, account number, and
deposit amount as shown on the receipts (Count 17); a sheet of paper with “LP”
and the account number for the 200 Park LP Bank of America account written on
it (Count 21); and three checks that had not been negotiated, in the amounts of
$142,694.10, $22,782.44, and $120,906.12.
Owen’s testimony also established that King lived at the house where these
documents were found. She testified that prior to executing the search warrant,
she found mail with King’s name on it in the trash at that address, and tax records
showed that King owned the house. Wardlaw and King’s roommate both told
Owen that King lived in the house. Thus, the court did not clearly err in finding
that King was responsible for the losses as to Counts 6, 10-12, 17, and 21 and as to
the three checks that had not been negotiated.
VI.
We review a district court’s factual findings as to the use of sophisticated
means for clear error. Ghertler, 605 F.3d at 1267. A defendant receives a
two-level enhancement under U.S.S.G. § 2B1.1(b)(9)(C) if his offense “involved
18
sophisticated means.” Id. (quotation omitted). This enhancement is appropriate
where the means used were “especially complex” or the offense or concealment of
the offense was “especially intricate.” Id. § 2B1.1, comment. (n.8). The
enhancement is proper where the “totality of the scheme was sophisticated” even
if the individual actions comprising the scheme were not sophisticated. Ghertler,
605 F.3d at 1267. Using “fictitious entities, corporate shells, or offshore financial
accounts” are ordinarily sophisticated. U.S.S.G. § 2B1.1, comment. (n.8).
The court did not clearly err in applying the sophisticated means
enhancement in this case. Although some of the individual steps involved in this
conspiracy may have been unsophisticated—such as depositing checks,
incorporating businesses, opening bank accounts, and withdrawing funds from the
bank accounts—the “totality of the scheme was sophisticated.” Ghertler, 605 F.3d
at 1267. The totality of this scheme involved obtaining stolen business checks,
incorporating shell companies in the names of the payees on the stolen checks
with the Georgia Secretary of State, using the incorporation documents from the
Georgia Secretary of State to open business checking accounts, depositing the
stolen checks in the accounts, and withdrawing the funds and making wire
transfers from the accounts. King argues that he should not have received this
enhancement because the companies were not fictitious entities. His argument is
19
meritless, as he incorporated shell companies that were not used to conduct
business. See U.S.S.G. § 2B1.1, comment. (n.8). Accordingly, the court did not
clearly err in applying a two-level enhancement for the use of sophisticated means.
VII.
We review a district court’s application of a § 3B1.1 role enhancement for
clear error. United States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009).
Under the Sentencing Guidelines, a defendant receives a four-point offense level
increase for being “an organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Relevant
factors in determining whether a § 3B1.1(a) enhancement is warranted include:
(1) 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 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.
Martinez, 584 F.3d at 1026 (quotation omitted). It is not necessary that every
factor is present for the enhancement to be applied in a particular case. A role
enhancement is appropriate only where the defendant exercised “some control,
influence or decision-making authority over another participant in the criminal
20
activity.” It is insufficient that a defendant merely managed the assets of the
conspiracy. The enhancement is intended “to address concerns about relative
responsibility.” Id. (quotation omitted). We upheld a role enhancement under
§ 3B1.1(a) where the defendant recruited and instructed two co-conspirators.
United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006). More than one
member of a conspiracy can qualify as a leader or organizer under this section.
U.S.S.G. § 3B1.1, comment. (n.4).
The district court did not clearly err in applying a four-level role
enhancement under § 3B1.1(a).1 See Martinez, 584 F.3d at 1025. A number of
factors support the application of this enhancement. King organized the entire
criminal scheme, obtained the stolen checks without which the conspiracy would
have been impossible, and recruited Wardlaw to open the bank accounts and
deposit the checks. Thus, the nature of King’s participation, his recruitment of his
first co-conspirator, and the degree to which he organized the conspiracy all
support the application of the role enhancement. See Martinez, 584 F.3d at 1026.
Next, the evidence showed that King’s and Wardlaw’s co-conspirators retained
only a small portion of the proceeds and that King retained a much larger share of
1
King has waived any argument under § 3B1.1(a) that the criminal activity did not
involve at least five participants or that it was not otherwise extensive because he did not raise
these issues in his initial brief. See Jernigan, 341 F.3d at 1283 n.8.
21
the proceeds than Wardlaw did. King’s claimed share of the profits of the
conspiracy thus supports the application of the role enhancement as well. See
Martinez, 584 F.3d at 1026. The extensive nature and scope of the conspiracy
support the application of the enhancement because this conspiracy caused an
actual loss of $919,436.26 and an intended loss of $1,617,750.70. See id.
As to the final factor, it appears that King exercised control over Wardlaw
because King determined the proceeds Wardlaw would receive from the
conspiracy; provided the stolen checks to Wardlaw to deposit; and retained
documentation for the various transactions involved in the conspiracy, such as
copies of checks, the invoices that came with some of the checks, and receipts
showing that deposits had been made. See Martinez, 584 F.3d at 1026. Therefore,
this factor also supports the application of the enhancement.
King also argues that this enhancement was improperly applied because
Wardlaw, not King, led the conspiracy. Even if Wardlaw was also a leader or
organizer of the conspiracy, that fact would not preclude King from receiving the
role enhancement as well because more than one member of a conspiracy can
qualify as a leader or organizer. See U.S.S.G. § 3B1.1, comment. (n.4).
Based on King’s role in organizing this conspiracy and obtaining the stolen
checks essential to the conspiracy, his recruitment of Wardlaw, the fact that he
22
claimed a large share of the conspiracy’s profits, the extensive nature and scope of
the conspiracy, and King’s apparent control over Wardlaw, the four-level role
enhancement was properly applied in this case. See Ndiaye, 434 F.3d at 1304.
VIII.
“We review a district court’s factual finding of obstruction of justice for
clear error” and the application of U.S.S.G. § 3C1.1 to the factual findings de
novo. United States v. Snipes, 611 F.3d 855, 871 (11th Cir. 2010), cert. denied,
131 S.Ct. 2962 (2011). A defendant may receive a two-level enhancement for
obstructing or impeding the administration of justice where he “willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or sentencing of the instant
offense of conviction, and . . . the obstructive conduct related to . . . the
defendant’s offense of conviction and any relevant conduct.” U.S.S.G. § 3C1.1.
“Obstructive conduct can vary widely in nature, degree of planning, and
seriousness.” U.S.S.G. § 3C1.1, comment. (n.3). The defendant need not be
successful in his attempt to impede or obstruct the administration of justice.
United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996).
23
King makes two arguments as to this enhancement. His first—that the
district court’s only factual finding as to this enhancement was that liens were
filed—is belied by the record. The court also found that the liens were legally
worthless, but that King intended to influence the officials to whom the liens were
sent. His second argument—that the liens were incomprehensible and
worthless—does not render this enhancement improper. The obstruction of justice
enhancement is applicable even where the defendant did not successfully obstruct
or impede the administration of justice. See U.S.S.G. § 3C1.1. Here, King did not
successfully influence the officials to whom he sent the liens, but as the court
found, he did intend for that outcome to occur. Because King attempted to
obstruct justice by influencing officials working on his case when he filed and sent
the liens, the district court did not clearly err in applying this enhancement. See
Taylor, 88 F.3d at 944.
For the foregoing reasons, we affirm King’s convictions and sentences.
AFFIRMED.
24