United States v. Orman Curtis Witherspoon, 663 F. App'x 841

Witherspoon and four others ran a scheme filing fraudulent tax returns using living and deceased victims’ personal data; indictment charged conspiracy to commit wire fraud and theft of government funds.
Witherspoon pled guilty to conspiracy and theft; Sentencing Guidelines range was 77–96 months; district court varied downward and imposed concurrent 72-month terms.
At sentencing, evidence showed Witherspoon assisted filing returns, deposited fraud proceeds into his account, paid co-conspirators from that account, and possessed fraudulent debit cards; many returns were filed from the home he shared with co-conspirators and his wife (the alleged scheme leader).
Witherspoon sought three Guidelines adjustments: (1) a minor/minimal role reduction under §3B1.2, (2) exclusion of loss attributable to co-conspirators he did not know about, and (3) reversal of a +2 enhancement for production of fraudulent debit cards.
The district court denied the role reduction, attributed the full reasonably foreseeable loss to him, and applied the +2 access-device production enhancement; the Eleventh Circuit affirmed.

Issue	Witherspoon's Argument	Government's Argument	Held
Whether defendant qualified for a minor/minimal role reduction under U.S.S.G. §3B1.2	Witherspoon claimed he was less culpable and should receive a 2- or 4-level reduction	He actively participated: filed returns, handled proceeds, possessed fraudulent cards, and his role was comparable to other conspirators	Denied — no clear error; conduct showed he was not among the least culpable nor less culpable than most co-conspirators
Whether the district court erred by attributing full/conspiracy losses to Witherspoon	He argued he neither knew nor reasonably should have known the full amount of loss caused by co-conspirators	He was present when scheme was planned, lived at the location where returns were filed, had victims’ data, family ties to conspirators, and benefited financially	Denied — court may attribute losses a defendant knew or reasonably should have known and foreseeable acts of co-conspirators
Whether the +2 enhancement for production/trafficking of unauthorized access devices was improper because he did not personally produce the cards	He contended he did not manufacture or produce the debit cards	He possessed the cards, transferred funds to co-conspirators, and the production/use of cards was reasonably foreseeable	Denied — defendant accountable for co-conspirators’ reasonably foreseeable production and use of access devices

Barrington v. United States, 648 F.3d 1178 (11th Cir.) (standard of review for district court findings and Guidelines application)
Bernal-Benitez v. United States, 594 F.3d 1303 (11th Cir.) (burden and method for proving minor/minimal role under §3B1.2)
Baldwin v. United States, 774 F.3d 711 (11th Cir.) (defendants may be held accountable for reasonably foreseeable acts of co-conspirators and for loss they knew or should have known)