[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14056

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

BRIAN KEITH MORROW, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cr-20057-CMA-1

____________________

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 1 of 8
2 Opinion of the Court 21-14056

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

After a jury trial, Brian Morrow was convicted of one count 

of knowingly using one or more unauthorized access devices with 

intent to defraud, see 18 U.S.C. § 1029(a)(2), and sentenced to 41 

months of imprisonment. The trial evidence showed that Morrow 

used four debit cards issued in the names of others to withdraw 

funds that were deposited from fraudulent unemployment claims. 

At sentencing, the district court calculated an intended loss of 

$284,739, using the maximum payable benefit amount for each of 

the fifty-six fraudulent unemployment claims that had been configured to send payments to the four debit cards. On appeal, Morrow 

contends that the court’s loss determination was pure speculation 

and that the amount was closer to $26,000. He also argues that his 

sentence was unduly harsh because he was a first-time offender. 

After careful review, we affirm.

I. 

We review for clear error the district court’s determination 

of the amount of loss attributable to a defendant. United States v. 

Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). To hold that a factual 

finding is clearly erroneous, we must be convinced that the court 

made a mistake. United States v. Chalker, 966 F.3d 1177, 1194 (11th 

Cir. 2020). A loss finding based on a reasonable construction of the 

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 2 of 8
21-14056 Opinion of the Court 3

evidence is not clearly erroneous. United States v. Almedina, 686 

F.3d 1312, 1315 (11th Cir. 2012). 

The guideline for fraud offenses, U.S.S.G. § 2B1.1, calls for 

an increase in the offense level of up to 30 levels based on the extent 

of loss. See U.S.S.G. § 2B1.1(b)(1). Loss is defined as “the greater 

of actual loss or intended loss.” Id. § 2B1.1, cmt. n.3(A). Actual loss 

is “the reasonably foreseeable pecuniary harm that resulted from 

the offense.” Id., cmt. n.3(A)(i). Intended loss is “pecuniary harm 

that the defendant purposely sought to inflict,” including “intended 

pecuniary harm that would have been impossible or unlikely to occur.” Id., cmt. n.3(A)(ii). The guidelines do not require a precise 

determination of loss, and the sentencing court may make a reasonable estimate. Id., cmt. n.3(C). 

When the loss amount is disputed, the government has the 

burden of proving by a preponderance of the evidence the losses 

attributable to the defendant. Cavallo, 790 F.3d at 1232. It must 

meet that burden with reliable and specific evidence, which can include evidence at trial, undisputed statements in the presentence 

investigation report, or evidence presented at sentencing. United 

States v. Baldwin, 774 F.3d 711, 727 (11th Cir. 2014); United States 

v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011). While the district 

court may make a reasonable estimate of loss, and may make inferences based on circumstantial evidence, it “must not speculate concerning the existence of a fact which would permit a more severe 

sentence under the guidelines.” Bradley, 644 F.3d at 1290 (quotation marks omitted). 

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 3 of 8
4 Opinion of the Court 21-14056

Here, the district court did not clearly err in determining a 

loss amount of $284,739 at sentencing, which triggered a 12-level 

increase to the offense level. See U.S.S.G. § 2B1.1(b)(1)(G). The 

evidence presented at trial and at sentencing established that Morrow used four debit cards issued in the names of victims of identity 

theft to withdraw fraudulently obtained unemployment benefits. 

The cards were used for a total of $26,000 in withdrawals or attempted withdrawals. Surveillance footage recovered of the withdrawals showed Morrow, and only Morrow, withdrawing a total 

of about $2,000 using the four debit cards on various occasions at 

ATMs between November 2018 and March 2019. A total of fiftysix fraudulent unemployment claims were configured to funnel 

benefits to the accounts connected to the four debit cards used by 

Morrow. The maximum total amount payable by South Carolina 

on the fifty-six claims was $284,739, according to the formula used 

by the state to calculate unemployment benefits for each claim. 

Viewed as a whole, these facts reasonably support the district 

court’s finding that the intended loss of Morrow’s conduct was 

more than $250,000. 

Morrow’s arguments to the contrary miss the mark. The 

district court properly used the maximum payable benefits for each 

claim to measure intended loss in this case, even if Morrow received much less than that amount. Indeed, we have explained 

that “when a sentencing court is determining the proper punishment for a defendant’s fraud, the court uses the reasonable 

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 4 of 8
21-14056 Opinion of the Court 5

mathematical limit of his scheme, rather than his concrete result.” 

United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). 

Nor was the court limited to calculating one fraudulent 

claim per debit card, as Morrow suggests, when the evidence established that a total of fifty-six fraudulent claims were being funneled to those four cards. That Morrow may not have known the 

precise number of fraudulent claims attached to each card does not 

prevent holding him accountable for those claims based on his 

knowing use of the unauthorized debit cards with intent to defraud. Cf. U.S.S.G. § 1B1.3, cmt. n.4(A) (“[A] defendant who transports a suitcase knowing that it contains a controlled substance . . .

is accountable for the controlled substance in the suitcase regardless of his knowledge or lack of knowledge of the actual type or 

amount of that controlled substance.”).

Morrow also asserts that the government presented “no evidence” to show how it arrived at the $284,739 figure and that the 

amount was “pure speculation.” We disagree. Special Agent Will 

Tippens of the Department of Labor’s Office of Inspector General 

testified at the sentencing hearing about the calculation of the approximately $284,739 figure. He explained that South Carolina 

pays unemployment benefits for a maximum of 20 weeks per year, 

with weekly benefit maximums and minimums of $326 and $42, 

respectively. So according to Tippens, the maximum payable benefit for each claim is the product of the weekly benefit amount,

times 20 weeks, which is the total amount of money “that would 

have been available had the State not stopped it.” Tippens further 

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 5 of 8
6 Opinion of the Court 21-14056

stated that the formula used to derive the weekly benefit amount

is “certified by law” and based on prior wages, and that the state of 

South Carolina provided the maximum benefit for each of the 

claims based on that formula.1

While Tippens did not receive or review the state’s underlying calculations, Morrow offers no reason to doubt that the state 

accurately calculated the weekly benefits for each claim or that Tippens accurately compiled those figures. Nor does Morrow take issue with any specific aspect of Tippens’s testimony. So despite the 

lack of precise calculations in the record, we cannot say that the 

district court clearly made a mistake in concluding that sufficient 

evidence supported a finding that the intended loss exceeded 

$250,000. We therefore affirm the court’s loss determination. 

II. 

We review the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard, considering whether 

the statutory factors in 18 U.S.C. § 3553(a) support the sentence 

under the totality of the circumstances. United States v. Nagel, 835 

F.3d 1371, 1376 (11th Cir. 2016); United States v. Gonzalez, 550 

F.3d 1319, 1324 (11th Cir. 2008).

1 We note that the state plainly did not use the absolute maximum of $326 per 

week for each claim, which would have resulted in a total loss of approximately $365,000. 

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 6 of 8
21-14056 Opinion of the Court 7

The district court must impose “a sentence sufficient, but 

not greater than necessary, to comply with the purposes” listed in 

18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness 

of the crime, promote respect for the law, provide just punishment, 

deter criminal conduct, and protect the public. 18 U.S.C. 

§ 3553(a)(2)(A)–(C). The weight to be given the § 3553(a) factors is 

generally committed to the court’s discretion, and “we will not reweigh the factors.” United States v. Johnson, 803 F.3d 610, 620 

(11th Cir. 2015). Ordinarily, we will vacate a sentence only if the 

party challenging it convinces us that, despite the “substantial deference” afforded sentencing courts, the sentence lies outside the 

range of reasonable sentences dictated by the facts of the case. 

United States v. Irey, 612 F.3d 1160, 1190–91 (11th Cir. 2010) (en 

banc); United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th 

Cir. 2015). 

Here, Morrow’s sentence is substantively reasonable. The 

district court imposed a sentence at the low end of the guideline 

range of 41 to 51 months, and we ordinarily expect such a sentence 

to be reasonable. United States v. Stanley, 739 F.3d 633, 656 (11th 

Cir. 2014). Nothing in the record suggests that this case is an extraordinary one where a low-end guideline sentence is unreasonable. The court explained that, in imposing the 41-month sentence, 

it had considered Morrow’s history and characteristics as set forth 

in the PSR and the sentencing memoranda, the serious nature of 

the offense conduct, and the need for the sentence to promote respect for the law and to deter both Morrow and others. Thus, the 

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 7 of 8
8 Opinion of the Court 21-14056

record shows that the court weighed Morrow’s lack of criminal history against the serious nature of the offense conduct and other 

sentencing needs, and it found that a guideline sentence was appropriate. These balancing decisions were squarely within the district 

court’s discretion, and Morrow has not shown that the court made 

a clear error of judgment. See Irey, 612 F.3d at 1190–91; Johnson, 

803 F.3d at 620. We affirm his sentence.

AFFIRMED.

USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 8 of 8