United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3797

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Mary Benz, *

* [UNPUBLISHED]

Appellant. *

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Submitted: June 11, 2012

Filed: June 20, 2012

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Before BYE, BEAM, and SMITH, Circuit Judges.

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PER CURIAM.

Mary Benz pled guilty to wire fraud, in violation of 18 U.S.C. § 1343, and the

district court sentenced her to 36 months' imprisonment. The applicable Guidelines

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range was 33 to 41 months' imprisonment. Benz appeals her sentence, challenging

only the application of a two-level sophisticated means enhancement to her advisory

Guidelines range. We affirm.

The Honorable P.K. Holmes, III, Chief Judge, United States District Court for

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the Western District of Arkansas. 
Between 1999 and 2009, Benz was an employee of Superior Industries

(Superior) in Rogers, Arkansas. Benz was initially hired as a staff accountant but

later attained the position of controller. During her employment, Benz used several

schemesto defraud Superior. Specifically, between 2002 and 2009, Benz cashed 137

unauthorized manual checks from Superior's payroll accounts totaling $156,836.57. 

Benz failed to enter such checks into the payroll system per company policy. In

addition, between 2005 and 2008, Benz made 62 fraudulent electronic transfers of

Superior's funds totaling $171,292.81 to her personal bank account. She initiated

these transactions through bank programs to which she had access, and she falsely

labeled the transactions as "returned," "payroll," or "transfer" to conceal her fraud. 

Benz also strategically timed such transfers so as to avoid detection by external

auditors. Pursuant to another scheme that took place between 2005 and 2009, Benz

wrote 47 company checks purportedly for "petty cash" and "Wal-Mart TeleChecks,"

but kept the money, totaling $28,462.69, for herself. Finally, Benz received payroll

overpayments between 2005 and 2009 totaling $37,306.53. DocumentsBenz created

to authorize such overpaymentsfalsely indicated that her payroll check had been lost

or that a direct deposit had been canceled.

Benz'sfraudulent activitywas detected during an internal investigation and she

was subsequently charged with one count of wire fraud, in violation of 18 U.S.C. §

1343. Benz pled guilty to the offense on May 5, 2011, and a presentence

investigation report (PSR) was prepared. The PSR recommended a sophisticated

means enhancement under United States Guidelines Sentencing Manual (U.S.S.G.)

§ 2B1.1(b)(9)(C) (2010). Section 2B1.1(b)(9)(C) provides for a two-level

enhancement in fraud cases if the offense "involved sophisticated means." The

application notes accompanying § 2B1.1 define "sophisticated means" as "especially

complex or especially intricate offense conduct pertaining to the execution or

concealment of an offense." U.S.S.G. § 2B1.1 cmt. n.8(B). Benz objected to the

application of the enhancement, arguing that her fraudulent conducted did not rise to

the level of sophistication contemplated in § 2B1.1(b)(9)(C). The district court

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overruled Benz's objection and applied the enhancement, emphasizing that Benz

employed four different methodsto defraud Superior between 2002 and 2009 and that

Benz took steps to conceal her acts. 

The sole issue on appeal is whether the district court erred when it applied the

sophisticated means enhancement. We find no error on this record. While Benz

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attempts to show that each method she employed was unsophisticated in isolation, we

have held that "[r]epetitive and coordinated conduct, though no one step is

particularly complicated, can be a sophisticated scheme." United States v. Jenkins,

578 F.3d 745, 751 (8th Cir. 2009) (quotation omitted). Here, Benz's repetitive and

coordinated transactions, involving well over 200 fraudulent checks and transfers,

amounted to a multi-front assault on Superior's finances over at least a seven-year

period. See United States v. Fiorito, 640 F.3d 338, 351 (8th Cir. 2011) (finding

sophisticated means where defendant's fraud spanned three years, targeted eleven

victims, and involved repetitive and coordinated conduct, even though the basic

element of the scheme was relatively simple), cert. denied, 132 S. Ct. 1713 (2012). 

And, to ensure the covert success of her operation, Benz used bank programs, falsely

labeled transfers, created false documents, and strategically timed certain transactions

to avoid detection by external auditors. Viewed as a whole, these facts show that

Benz's offense "involved sophisticated means" as contemplated in § 2B1.1(b)(9)(C). 

We affirm. 

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The government points out an intracircuit split regarding whether we review

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this issue de novo or for clear error. As we find no error, clear or otherwise, we need

not address the split here. See United States v. Jenkins, 578 F.3d 745, 751 (8th Cir.

2009) (declining to address this split where "the more exacting de novo standard of

review [was] satisfied").

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