UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICHOLAS THOMAS, Defendant-Appellant.
No. 22-10831
United States Court of Appeals For the Eleventh Circuit
November 23, 2022
Non-Argument Calendar
D.C. Docket No. 1:20-cr-00334-SDG-CMS-1
Appeal from the United States District Court for the Northern District of Georgia
PER CURIAM:
Nicholas Thomas appeals his 55-month total sentence for one count of wire fraud conspiracy, 18 counts of wire fraud, and 9 counts of mail fraud. On аppeal, he argues that: (1) the district court improperly determined the amount of loss for which he was responsible under
I.
“The Government bears the burden of establishing the loss attributable to the defendant by a preponderance of the evidence, and we review a district court‘s determination of monetary loss for clear error.” United States v. Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). We will conclude that a finding of fact is clearly erroneous only if we are left with a “definite and firm conviction that a mistake has been committed.” United States v. Pierre, 825 F.3d 1183, 1191 (11th Cir. 2016) (quotations omitted).
We review the sentence a district court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretiоn.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). Finally, we review a determination that a defendant is subject to a
II.
First, we are unpersuaded by Thomas‘s claim that the district court improperly determined the amount of loss for which he was responsible.
While the government must support its loss calculations with specific, reliable evidence, the guidelines do not require that a sentencing court make a precise determination of loss. United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). Insteаd, a sentencing court need only make a reasonable estimate of the loss, given the available information. Id.;
To determine the scope of a defendant‘s agreement to participate in a jointly undertaken criminal schemе, the district court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others. Whitman, 887 F.3d at 1248. A defendant‘s mere awareness that he was part of a larger scheme is insufficient to show that another individual‘s criminal activity was within thе scope of jointly undertaken criminal activity, but actions that suggest that the defendant was actively involved in a criminal scheme permit the inference that the defendant agreed “to jointly undertake” that scheme. Id. For example, an implicit agreement may be inferrеd if, even though the various participants in the scheme acted on their own behalf, each of the participants knew each other and was aware of the other‘s activities, and they aided and abetted one another by sharing
Under
In reviewing the “substantive reasonableness of [a] sentence imposed under an abuse-of-discretion standard,” we consider the “totality of the circumstances.” Pugh, 515 F.3d at 1190 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). The district court must impose a sentence “sufficient, but not greater than necessary to comply with the purposes” listed in
The disparity between sentences of codefendants is generally not an appropriate basis for relief on apрeal. Cavallo, 790 F.3d at 1237. In considering the need to avoid unwarranted sentencing disparities, the district court should not draw comparisons to cases involving defendants who pleaded guilty or lacked extensive criminal histories if those things are not true of the defendants. United States v. Jayyousi, 657 F.3d 1085, 1118 (11th Cir. 2010). A sentence is substantively unreasonable when it does not reflect the need to avoid unwarranted sentencing disparities among defendants who committed similar crimes and the district court failed to adequately explain how its sentence avoids the disparity in sentences with other similarly-situated defendants. Pugh, 515 F.3d at 1202-03. When considering disparity, we first consider whether the defendant is similarly situated to his codefendants. United States v. Duperval, 777 F.3d 1324, 1338 (11th Cir. 2015). And one source of dissimilarity stems from different charges of conviction. Id.
While we do not automatically presume a sentence falling within the guideline range to be reasonable, we ordinarily expect that sentence to be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A sentence imposed well below the statutory maximum penalty is another indicator of reasonableness. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Here, the district court did not clearly err in determining the amount of loss for which Thomas was responsible. For starters, Thomas does not challenge the loss calculations, and he even conceded in the district court that they were correct. As a result, the central inquiry for us is whether the district court erred in using the whole amount of loss, including that attributed to codefendant George Chambers, to calculate Thomas‘s offense level.
The crimes at issue arise out of a scheme in which Thomas, along with four codefendants -- Chambers, as well as Chelsea Gordon, Allen Hauser, and Michael Pitts -- ran a shell company called “Sophisticated Means” that defrauded various payroll processing companies. Specifically, Sophisticated Means contracted with several staffing companies to provide payroll services, but when the staffing companies issued payroll funds to Sophisticated Means‘s alleged “employees,” Thomas and his codefendants kept the payroll funds for themselves and never reimbursed the staffing companies. The record reflects that Thomas discussed the scheme with Chambers before it began, and, to the extent that they did not execute
Based on this record, both Thomas‘s and Chambers‘s acts were within the scope of the jointly undertaken scheme. Whitman, 887 F.3d at 1248; see also
Nor has Thomas shown that his sentence was substantively unreasonable. He claims that the district court failed to treat him
Further, the district court concluded that Thomas and the other codefendants had different criminal histories; notably, the district court permissibly gave great weight to Thomas‘s relevant criminаl history of very similar crimes in an earlier case, for which he was still on supervised release. Rosales-Bruno, 789 F.3d at 1261. The district court also found that Thomas and the other codefendants were not similarly situated because of the differences in the charges they faced in the present case. Duperval, 777 F.3d at 1338. Indeed, Thomas was the only defendant who pleaded guilty to all 28 charges, which was a permissible aggravating factor in reaching a sentence. Id. In light of these dissimilarities, Thomas has not overcome the general rule against relief on appeal based on sentence disparities between codefendants. Cavallo, 790 F.3d at 1237.
In short, Thomas has not shown that his 55-month total sentence -- which was within the applicable guidelines range and far below the statutory maximum total sentence he faced for all 28 of his felony convictions -- was substantively unreasonable. Accordingly, we affirm as to this issue.
We also find no merit in Thomas‘s claim that the district court should not have enhanced his offense level by three points under
Here, the district court did not clearly err in awarding Thomas a three-point role enhancement under
But regardless of whether Chambers should have also been awarded a three-level role enhancement, the district court‘s analysis as to Thomas properly considered the factors in thе guidelines and in the commentary that justified a three-level enhancement for
AFFIRMED.