United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-1327

___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Sienemah Terrance Gaye,

lllllllllllllllllllllDefendant - Appellant.

___________________________

No. 17-1347

___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Finoh Sahr Fillie,

lllllllllllllllllllllDefendant - Appellant.

___________________________

No. 17-1496

___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellee,
v.

Prince Korboi Sumoso,

lllllllllllllllllllllDefendant - Appellant.

____________

Appeals from United States District Court 

for the District of Minnesota - St. Paul

____________

Submitted: February 15, 2018

Filed: August 29, 2018

____________

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges. *

____________

COLLOTON, Circuit Judge.

Sienemah Gaye, Finoh Fillie, and Prince Sumoso, along with twenty-two other

co-defendants, were indicted for their involvement in a scheme to defraud banks. 

Gaye pleaded guilty to conspiracy to commit bank fraud, see 18 U.S.C. §§ 1344 and

1349, twenty counts of aiding and abetting bank fraud, see 18 U.S.C. § 1344, and two

counts of aiding and abetting aggravated identity theft, see 18 U.S.C. § 1028A. Fillie

pleaded guilty to conspiracy to commit bank fraud and one count of aiding and

abetting aggravated identity theft. Sumoso pleaded guilty to conspiracy to commit

bank fraud and four counts of aiding and abetting bank fraud. The district court

1

This opinion is filed by Chief Judge Smith and Judge Colloton under Eighth

*

Circuit Rule 47E.

The Honorable JohnR. Tunheim, Chief Judge,United States DistrictCourt for

1

the District of Minnesota.

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sentenced Gaye, Fillie, and Sumoso to 144, 134, and 54 months’ imprisonment,

respectively, and ordered each to pay restitution. The three defendants appeal,

alleging that the district court erred in determining their sentences. For the reasons

explained below, we affirm.

I.

The conspiracy in this case involved a scheme to defraud financial institutions

in the Minneapolis-St. Paul metro area by cashing counterfeit checks drawn on

accounts of businesses and individuals. Participants in the scheme played several

roles. “Manufacturers” created the counterfeit checks using check-printing software

and blank check stock. “Bank insiders” provided bank account information for use

on counterfeit checks. “Managers” and “recruiters” enlisted individuals who would

serve as payees on the checks. These individuals, called “runners,” took the checks

to the bank to cash or deposit.

Members of the conspiracy acquired payor account information through

various means. Using social media, participants searched the hashtag

“#myfirstpaycheck” and found photographs of legitimate paychecks that unwitting

victims had posted online. Bank insiders sometimes provided account information. 

Some conspirators willingly turned over their own payroll or personal checks to be

counterfeited by other members of the conspiracy.

Gaye wasinvolved in thisscheme fromJune 2005 to September 2013. Sumoso

and Fillie joined later, with Sumoso participating from August 2007 to September

2013, and Fillie participating fromNovember 2007 until September 2013. During the

period between November 2007 and September 2013 alone, more than 500 runners

negotiated over 1500 counterfeit orfraudulent checks. Gaye and Fillie printed checks

and passed them to the runners who took the checks to a bank to cash or deposit. The

two also opened bank accounts and negotiated counterfeit checks in the names of

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individuals whose identities had been stolen. Sumoso served primarily as a recruiter;

he provided runner information to manufacturers and transported runnersto banks to

deposit the fraudulent checks.

Gaye, Fillie, and Sumoso pleaded guilty to the charges against them, and the

district court held a consolidated evidentiary hearing to resolve disputed sentencing

issues. The court made findings under the sentencing guidelines that increased the

offense levels for each defendant. On appeal, Gaye, Fillie, and Sumoso each

challenge their sentences, arguing primarily that the district court committed

procedural error in applying the guidelines. We review the district court’s findings

of fact for clear error and its application of the guidelines de novo.

II.

A.

1.

Gaye raises seven claims of error. He first complains that the district court

improperly considered a report of Gaye’s proffer interview with the government. The

report included self-incriminating statements about Gaye’s involvement in the bank

fraud scheme. Gaye argues that the district court relied on the statements in

upholding the government’s refusal to move for a one-level reduction for acceptance

of responsibility under USSG § 3E1.1(b). He contends that the court’s use of the

information was contrary to USSG § 1B1.8(a) and the proffer agreement.

USSG § 1B1.8(a) addresses the use of information provided by a defendant

who agrees to cooperate with investigators. Where the government agrees that selfincriminating information provided under an agreement will not be used against the

defendant, § 1B1.8(a) provides that the district court must not use the information to

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determine the applicable guideline range, “except to the extent provided in the

agreement.”

Before pleading guilty, Gaye agreed to meet with the government to provide

information concerning the bank fraud conspiracy. As part of that arrangement, the

parties signed an agreement that set forth the terms and conditions of the proffer

interview. Among other things, the government agreed that it “w[ould] not offer in

evidence . . . in connection with any sentencing proceeding for the purpose of

determining an appropriate sentence, any statements made by [Gaye] at the meeting,”

subject to certain enumerated exceptions. Under one exception, the parties agreed

that “the government may use . . . statements made by [Gaye] at the meeting . . . to

rebut any evidence, argument or representations offered by or on behalf of

[Gaye] . . . at sentencing.” (emphasis added).

Whether the district court properly considered Gaye’s proffer interview at

sentencing turns on whether the quoted exception allowed for the use of the

information. The district court concluded that “based on the facts and the language

of the proffer agreement,” Gaye’s statements during the interview could be used “for

the limited purpose of rebutting Mr. Gaye’s denial of many of the facts in the

[presentence investigation report].” We agree.

During the proffer interview, Gaye explained that he printed and signed checks

for other members of the conspiracy, and said that he “received $200-$300 per check

for each person he recruited.” He admitted that he and his co-conspirators “had

meetings” at variouslocations during which they “would discuss issuesregarding the

cuts of checks not being paid or people running off with the money.” Gaye also told

the government that he and a co-conspirator opened a bank account in the name of

Richard Wyss.

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But in his objections to the presentence investigation report (PSR) prepared by

the probation office, Gaye denied many of these facts. He objected to and denied

statements that he “created counterfeit checks,” “provided counterfeit checks,” and

“shared in the fraudulent proceeds of the scheme.” Gaye objected to the statement

that “members of the conspiracy met at various locations to distribute checks and

proceeds of the fraud and also to discuss logistics of the scheme, disputes among the

coconspirators and related topics.” He added a denial: “Defendant denies the

meetings occurred and that he was an attendee of the meetings.” Gaye also denied

that he “opened a fraudulent Bank of America account using the real name, date of

birth, and social security number of victim R.D.W., a real person whose identity had

been stolen, but with Gaye’s address and phone number.” Gaye stood by his

objections at the sentencing hearing, even though he had pleaded guilty to aggravated

identity theft involving victim R.D.W., and even though the government presented

additional testimony during the hearing to substantiate other factual allegations in the

PSR.

Gaye contends that his objections to the PSR were not “evidence, argument or

representations,” so the court was not permitted to consider his proffer interview

under the exception stated in the agreement. But Gaye did more than object to the

facts listed in the PSR and put the government to its burden of proof. By

affirmatively denying certain facts, Gaye asserted that those facts were not true. This

amounted to making “representations” about those facts.

Gaye also argues that his “statements were entirely consistent with the

confidential information he shared with the Government,” but we disagree. Gaye’s

denials directly contradicted some of the information he provided to the government

before sentencing, and therefore triggered the exception in the proffer agreement. 

The agreement thus permitted the district court to consider Gaye’s statements “for the

purpose of determining an appropriate sentence.” See United States v. Loesel, 728

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F.3d 749, 753-54 (8th Cir. 2013); see also United States v. Araujo, 622 F.3d 854,

860-62 (7th Cir. 2010).

2.

Gaye contendsthat the court erred by increasing his offense level under USSG

§ 3C1.1 for obstruction of justice. Section 3C1.1 provides for a two-level increase

if the defendant “willfully obstructed or . . . attempted to obstruct . . . the

administration of justice with respect to the investigation, prosecution, or sentencing

of the instant offense of conviction,” so long as “the obstructive conduct related to . . .

the defendant’s offense of conviction and anyrelevant conduct.” Obstructive conduct

includes, among other things, “threatening, intimidating, or otherwise unlawfully

influencing a . . . witness . . . directly or indirectly, or attempting to do so,” as well as

“other conduct prohibited by obstruction of justice provisions under Title 18, United

States Code.” USSG § 3C1.1, comment. (n.4(A), (I)).

The district court found that Gaye had attempted to discourage a witness,

Jeffrey Gbor, from testifying at his trial. The court cited a series of text messages that

Gaye exchanged with Gbor’s girlfriend, Kiana Harris, and other communications

between Harris, Gbor, Gbor’s friend, and Gbor’s brother.

Before pleading guilty, Gaye learned through discovery that the government

was planning to call Gbor as a witness against him. Gaye sent a text message to

Harris on May 1, telling her that Gbor was going to testify against him. Harris

responded with disbelief and said, “Does soda know?? . . . Maybe he can talk to him

n tell him to chill.” (“Soda” is a nickname for Gbor’s friend Marcel Chambers.) 

Gaye stated that he had not talked to Soda yet, and Harris replied, “U want me to tell

soda?? I know they talk.” Gaye responded, “Yea.” A few minutes later, Harris sent

a text message to Soda, referring to Gaye by his nickname “Nema.” The message

stated: “Nema just hit me n told me he’s in his lawyers office and just found out that

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Jeffery is going to testify against him. . . . Can u please talk to him n tell him to fall

back on that.”

Soda responded about fifteen minutes later, expressing disbelief but telling

Harris that he would “see wussup tho.” Harris forwarded Soda’s message to Gaye,

and in response, Gaye sent Harris picturesthat he took of documentsshowing Gbor’s

cooperation with the government. Harris forwarded one of these photos to Soda,

reiterating that Gbor was testifying against Gaye, and saying “U better try n talk to

him ASAP.” In another message, Harris told Soda, “Hopefully he recants his

statement.” Soda said, “Right . . . maybe he won’t testify if I say something.”

Three days later, on May 4, Gbor told the government that he no longer wished

to cooperate. Soda sent Harris a message telling her that Gbor was not going to

testify against Gaye. Harris reported back to Gaye that “[S]oda said he talked to

snitch bitch and he said he wasn’t going to testify if they called him to the stand.” In

a later message, she said, “Anyway, hopefully that helps.”

Gaye contends that under a “neutral reading,” his messages to Harris do not

constitute obstruction, because they do not “suggest [Gaye] sought to intimidate Gbor

to recant his cooperation.” But the guideline does not require a finding of

intimidation. Obstructive conduct under § 3C1.1 also encompasses “unlawfully

influencing” a witness or attempting to do so, and any “other conduct prohibited by

obstruction of justice provisions under Title 18, United States Code.” Id., comment.

(n.4(A), (I)).

The district court found that Gaye attempted to “discourage a witness from

testifying.” R. Doc. 1341, at 44. The federal witness tampering statute, 18 U.S.C.

§ 1512(b)(1), makesit a crime to “knowingly . . . corruptly persuade[] another person,

or attempt[] to do so, . . . with intent to . . . influence, delay, or prevent the testimony

of any person in an official proceeding.” A defendant may be found to engage

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knowingly in corrupt persuasion where he acts with “consciousness of wrongdoing.”

United States v. Mann, 701 F.3d 274, 305-06 (8th Cir. 2012). The district court did

not clearly err in finding that Gaye’s conduct met that standard.

Gaye’s messages with Harris make clear that Gaye knew that Gbor had

provided evidence that incriminated Gaye. Gaye’s agreement with Harris to have

Soda tell Gbor to “chill,” followed by his transmission of documents to Harris

confirming that Gaye was a cooperating witness, demonstrates that Gaye knew that

he was attempting to influence, delay, or prevent the testimony of Gbor in an official

proceeding against Gaye. The evidence supported a finding that Gaye did so with

consciousness of wrongdoing. Even assuming that innocent attempts to encourage

a person to exercise his right against self-incrimination do not violate the statute, see

United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997), the record supports a

finding that Gaye did more. Gbor already had pleaded guilty, waived his right against

self-incrimination, and disclosed incriminating information about Gaye to the

government. Gaye then attempted to stop Gbor from testifying. It was thus not

clearly erroneous to find that Gaye’s messages constituted obstruction of justice that

warranted a two-level increase under the guidelines. See United States v. Hemsher,

893 F.3d 525, 535 (8th Cir. 2018).

3.

Gaye next complains that the district court erred by not awarding him a thirdlevel reduction under the guideline for acceptance of responsibility. See USSG

§ 3E1.1. He received a two-level reduction for accepting responsibility. The

guidelines permit a sentencing court to decrease by one additional level, “upon

motion ofthe government,” if the defendant’s guilty plea allowed the government and

court to allocate resources efficiently. USSG § 3E1.1(b); see also id., comment. (n.6). 

The government did not move for a third-level reduction, and a district court “may

not order the government to file the motion unless the government’s refusal was

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based on unconstitutional motive.” United States v. Jordan, 877 F.3d 391, 394 (8th

Cir. 2017).

Gaye asserts that the government lacked any basis to withhold the motion. 

Insofar as he means that the government acted irrationally, and thus

unconstitutionally, the record does not support the contention. The government

argued atsentencing that Gaye was not entitled to any reduction at all, because he had

frivolously denied facts in the presentence report and obstructed justice. These were

legitimate bases for opposing any reduction for acceptance of responsibility, see

USSG § 3E1.1, comment. (nn.3-4), and the district court’s generous award of a twolevel reduction did not compel the government to move for a third. The district court

committed no clear error in declining to award Gaye a three-level reduction for

acceptance of responsibility.

4.

Gaye also challenges the district court’s calculation of loss amount. The

guidelines provide for a fourteen-level increase if loss from the defendant’s offense

is greater than $550,000 but less than or equal to $1,500,000. USSG

§ 2B1.1(b)(1)(H). “Loss” under this provision isthe greater of actual loss or intended

loss. USSG § 2B1.1, comment. (n.3(A)). Actual loss is “the reasonably foreseeable

pecuniary harm that resulted from the offense,” and intended loss is the “pecuniary

harm that the defendant purposely sought to inflict.” Id., comment. (n.3(A)(i)-(ii)). 

After concluding that the actual loss from Gaye’s offense exceeded the amount of

intended loss, the district court adopted the government’s lossfigure of $770,951.07,

and increased Gaye’s offense level accordingly.

Gaye contends that the facts do not support the court’s calculation. He argues

that he should have been held accountable for only the loss resulting from his own

creation and negotiation of counterfeit checks. But a “sentencing court must include

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in its calculation any losses caused by ‘relevant conduct.’” United States v. Quevedo,

654 F.3d 819, 823 (8th Cir. 2011). In the case of a jointly undertaken criminal

activity, relevant conduct includes “all acts and omissions of others that were . . . (i)

within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that

criminal activity, and (iii) reasonably foreseeable in connection with that criminal

activity” and that “occurred during the commission of the offense of conviction.” 

USSG § 1B1.3(a)(1)(B). When determining whether acts of co-conspirators qualify

as relevant conduct under the guidelines, we look to “the scope of the individual

defendant’s undertaking and foreseeabilityin light ofthat undertaking, rather than the

scope of the conspiracy as a whole.” United States v. Spotted Elk, 548 F.3d 641, 674

(8th Cir. 2008).

The district court did not clearly err in finding that the scope of Gaye’s

involvement in the conspiracy was substantial, and that the fraudulent transactions

of his co-conspirators were foreseeable to him. The evidence tended to show that

Gaye had extensive knowledge of how the scheme operated. Detective Joel Moore

of the Edina Police Department testified that Gaye had been involved with the bank

fraud scheme almost fromits inception, and he described Gaye’s involvement as both

a runner and manufacturer for the scheme—depositing fraudulent checks into his own

account and printing counterfeit checks for others. The detective also testified that

Gaye coordinated and attended meetings with several of his co-conspirators where

the group discussed dividing proceeds of the fraud and logistical issues presented by

the scheme.

The government presented a chart that detailed dates of transactions, account

holders, the check runner’s name, and the amount of loss associated with each

transaction that law enforcement believed was attributable to Gaye. According to

Detective Moore, the chart “reflect[ed] all the transactions that law enforcement

linked to this conspiracy.” Special Agent Shannon Korpela of the IRS concurred,

testifying that she and Detective Moore determined that the checks on the loss

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schedules were connected to the conspiracy based on trash pulls, information from

telephones seized during a search, a check-creating software program found on

Gaye’s computer, and information received from cooperating witnesses.

The court did not clearly err in finding that the transactions conducted by

Gaye’s co-conspirators were within the scope of the conspiracy and were reasonably

foreseeable in light of Gaye’s extensive involvement in the scheme. The court

therefore properly treated the loss attributed to those co-conspirators as relevant

conduct, and committed no clear error in concluding that the Gaye was responsible

for the total loss listed on the government’s chart.

5.

Gaye next complains that the district court clearly erred by applying a fourlevel increase under USSG § 3B1.1 for Gaye’s role in the offense as an organizer or

leader. “To qualify for an adjustment under [§ 3B1.1], the defendant must have been

the organizer, leader, manager, or supervisor of one or more other participants.” 

USSG § 3B1.1, comment. (n.2). To distinguish an organizer or leader from a

manager or supervisor, the court may consider: (1) the exercise of decisionmaking

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. USSG § 3B1.1, comment. (n.4).

The district court determined that Gaye was an organizer or leader based on its

findings that “Gaye called meetings, monitored accounts, obtained victim

information, was in many respects in the Court’s view the initiator of the conspiracy

and was involved from start to finish.” The court also cited “the text messages in

which Mr. Gaye was directing others asthe crime was being committed.” The record

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supports these findings, and we see no clear error in the court’s application of the

four-level adjustment.

6.

Gaye next argues that the court clearly erred by applying a two-level specific

offense characteristic under USSG § 2B1.1(b)(10)(C) for an offense involving

“sophisticated means”—that is, “especially complex or especially intricate offense

conduct pertaining to the execution or concealment of an offense.” USSG § 2B1.1,

comment. (n.9(B)). In finding that Gaye qualified for the increase, the district court

highlighted the scheme’s repetition and coordination, and found that Gaye opened a

fraudulent business account to further the enterprise.

“Sophisticated means need not be highly sophisticated,” and the adjustment is

“proper when the offense conduct, viewed as a whole, was notablymore intricate than

that ofthe garden-variety offense.” United States v. Norwood, 774 F.3d 476, 480 (8th

Cir. 2014) (per curiam) (brackets and internal quotation marks omitted). “[T]he

sophistication of the offense conduct is associated with the means of repetition, the

coordination required to carry out the repeated conduct, and the number ofrepetitions

or length of time over which the scheme took place.” United States v. Laws, 819 F.3d

388, 393 (8th Cir. 2016).

Gaye argues that his offense did not involve sophisticated means, because it

amounted only to “stealing account numbers (often from social media),” “creating

fake checks,” taking those checks to a bank, and depositing them into coconspirators’ personal accounts. He argues that any other criminal could have

committed this fraud, and that the offense was “crude and prosaic.”

Gaye understates the sophistication of his work. He was embroiled in a scheme

involving over 1500 fraudulent transactions and more than 500 participants that

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persisted for eight years. For the conspiracy to succeed as long as it did, the scheme

required “recruiting others so as to avoid detection,” Norwood, 774 F.3d at 480,

“coordination and planning,” United States v. Bistrup, 449 F.3d 873, 883 (8th Cir.

2006), and a “vast network of coconspirators to carry out the scheme’s numerous

steps.” United States v. Jenkins-Watts, 574 F.3d 950, 962 (8th Cir. 2009). The court

did not clearly err in applying the increase.

7.

In his final challenge, Gaye contends that his sentence of 144 months is

substantively unreasonable. We review the reasonableness of a sentence under a

deferential abuse-of-discretion standard, Gall v. United States, 552 U.S. 38, 51

(2007), and we presume that a sentence within the advisory guideline range is

reasonable. See Hemsher, 893 F.3d at 535.

Gaye’s sole contention is that the district court failed to accord proper weight

under 18 U.S.C. § 3553(a)(6) to the need to avoid sentencing disparities among

similarly situated defendants. He notes that many of his co-conspirators were

sentenced to terms of 3 to 136 months’ imprisonment, and he argues that his 144-

month sentence created an unwarranted sentencing disparity. But “[t]he statutory

direction to avoid unwarranted disparities among defendants . . . refers to national

disparities, not differences among co-conspirators, so [Gaye’s] argument founders on

a mistaken premise.” United States v. Pierre, 870 F.3d 845, 850 (8th Cir. 2017). In

any event, Gaye has not shown that he and any ofthese co-conspirators were similarly

situated. The district court found “specifically that there is no unwarranted

sentencing disparity,” and that 144 months was “an appropriate placement given

sentences given to codefendants in this case and in other similar cases.” The court

did not abuse its discretion, so we affirm Gaye’s sentence.

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B.

1.

Fillie raises seven claims of error. First, he challenges the district court’s loss

calculation. The district court concluded that Fillie was responsible for $770,551.08

in actual loss—a figure gleaned from another chart prepared by Detective Moore and

Special Agent Korpela. Fillie disputes this figure.

Fillie contends that there was insufficient evidence to prove by a

preponderance of the evidence that the loss caused by his co-conspirators was

reasonably foreseeable to him. But the evidence tended to show that Fillie, like Gaye,

had extensive knowledge of how the scheme operated and was deeply involved in its

operations. Fillie participated in the scheme from 2007 to 2013, hosted the meetings

where his co-conspirators discussed distributing profits, and served as both a runner

and a manufacturer. On this record, it was not clearly erroneous to conclude that the

transactions of Fillie’s co-conspirators were reasonably foreseeable to him. The court

properly held Fille responsible for the full amount of loss on the government’s

schedule.

2.

Fillie contends that the district court clearly erred in calculating the number of

victims involved in his offense. The guidelines provide for a two-level increase if the

offense “involved 10 or more victims.” USSG § 2B1.1(b)(2)(A)(i). A “victim” is

“any person,” including a corporation, company, association, or firm, “who sustained

any part of the actual loss.” USSG § 2B1.1, comment. (n.1).

Fillie contends that he is responsible only for victims who suffered actual

losses as a result of the transactions in which Fillie personally participated. On this

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view, he counts seven (not ten) victims whose losses he caused. But under relevant

conduct principles, a sentencing court must also include those victims who suffered

pecuniary loss as a result of acts taken by others in the jointly undertaken criminal

activity. USSG § 1B1.3(a)(1)(B). As we have concluded that Fillie reasonably could

have foreseen the loss attributed to these victims, it follows that he reasonably could

have foreseen that these victims would suffer the loss flowing from the conspiracy. 

The court properly applied the increase.

3.

Fille next argues that the district court clearly erred by applying a three-level

increase under USSG § 3B1.1(b) for Fillie’s role as a manager or supervisor of the

scheme. Several factors are relevant to determining whether a three-level adjustment

is warranted: the exercise of decisionmaking authority, the nature of participation in

the commission of the offense, the recruitment of accomplices, the claimed right to

a larger share of the fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal activity, and the degree of

control and authority exercised over others. USSG § 3B1.1, comment. (n.4).

The district court determined that a three-level increase was appropriate

because “there [was] some level of organization on the part of Mr. Fillie,” but the

court did not “consider him to be at the level of Mr. Gaye in terms of being a leader.” 

The record supportsthisfinding. The evidence tended to show that Fillie’s residence

was a major hub of the fraudulent scheme and that he organized other participants. 

Detective Moore testified regarding surveillance conducted at Fillie’s home,

explaining that law enforcement observed Fillie’s co-conspirators going to and from

Fillie’s home before and after the fraudulent transactions. Fillie also hosted meetings

with his co-conspirators where they discussed logistics ofthe scheme and distributing

profits. Fillie’s role as a manufacturer gave him a central role in the offense, as

without him the scheme could not persist. Considering the factors described in the

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commentary to § 3B1.1, we conclude that there was no clear error in applying the

adjustment.

4.

Fillie also challenges the two-level increase for sophisticated means under

USSG § 2B1.1(b)(10)(C). He contends that his offense did not exceed the gardenvariety bank fraud because he did only the “bare minimum necessary to commit the

offense”—create false checks and help cash them—without engaging in activity that

was either intricate or complex. This argument is substantially the same as the

argument advanced by Gaye, and we reject it for the same reasons. See supra

section II.A.6.

5.

Fillie next challenges the district court’s calculation of his criminal history

score. The district court determined that Fillie had nineteen criminal history points,

which placed him in criminal history category VI. Fillie contends, however, that the

court erred by assessing two criminal history points for each of the following

convictions: (1) a 2011 conviction for check forgery, (2) a 2011 conviction for fifthdegree assault, (3) a 2013 conviction for second-degree refusal to submit to chemical

testing, and (4) a 2014 conviction for driving under the influence. On this view,

Fillie’s total criminal history score would be 11, placing him in criminal history

category V.

Fillie’s conviction for check forgery involved an attempt to negotiate a

counterfeit check on July 24, 2009, at TCF Bank. Fillie claims that the government

included this counterfeit check on Fillie’s loss schedule as part of his involvement in

the instant offense. Because criminal history points are not assigned to sentences for

“conduct that is part of the instant offense,” USSG § 4A1.2, comment. (n.1); see

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USSG § 4A1.1, Fillie argues that he should not have received any points for the

check forgery conviction. Fillie’s loss schedule, however, did not include the

complained-of check, and the district court did not rely on the check in arriving at its

loss findings. The district court therefore did not err in assigning criminal history

points for this conviction.

Fillie argues in the alternative that he should have received only one criminal

history point for the check forgery conviction, rather than two points, because he

served only fifty days in jail. But “criminal history points are based on the sentence

pronounced, not the length of time actually served.” USSG § 4A1.2, comment. (n.2). 

Fillie wassentenced to 120 days, so the district court properly assigned the conviction

two points. See USSG § 4A1.1(b).

Because the district court did not err in adding two criminal history points for

the check forgery conviction, we need not address Fillie’s challenges to the criminal

history points assessed on the other three convictions: regardless of the number of

points assigned to the other convictions, Fillie’s criminal history category remains

category VI.

6.

Fillie next contends that his sentence is substantively unreasonable, but he

appears to base this argument largely on his view that the court should not have

applied the challenged increases under the guidelines. Properly calculated, Fillie’s

guideline range for the conspiracy offense was 110 to 137 months, based on a total

offense level of 25 and a criminal history category VI. The court sentenced Fillie to

the bottom of the range—110 months—for that conspiracy count, and added a

consecutive sentence of 24 months for aiding and abetting aggravated identity theft

as required under 18 U.S.C. § 1028A(a)(1). In reaching this sentence, the district

court specifically acknowledged Fillie’s arguments in mitigation and considered the

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seriousness of the offense and the length of Fillie’s involvement in the scheme. In

light of the court’s explanation, we see no abuse of discretion in the sentence

imposed.

7.

Finally, Fillie appeals the district court’s restitution order, arguing that the

amount of restitution ordered ($770,551.08) should not have exceeded the amount

agreed upon in Fillie’s plea agreement ($481,929.17). “We review the district court’s

decision to order restitution for abuse of discretion and its underlying fact

determinations for clear error.” United States v. Gregoire, 638 F.3d 962, 973 (8th

Cir. 2011).

Fillie agrees that the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A,

authorized the district court to order restitution. Section 3663A provides that a

sentencing court “shall order” a defendant convicted of “an offense against property

under this title, . . . including any offense committed by fraud or deceit[,]” to pay

restitution to a “victim of the offense.” 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). “[I]n

the case of an offense that involves as an element a scheme, conspiracy, or pattern of

criminal activity,” a “victim” includes “any person directly harmed by the defendant’s

criminal conduct in the course of the scheme, conspiracy, or pattern.” Id.

§ 3663A(a)(2). Fillie pleaded guilty to conspiracy to commit bank fraud, an offense

that has as an element a conspiracy, so the court was authorized to order restitution

to victims of that conspiracy. See United States v. Farrington, 499 F.3d 854, 860-61

(8th Cir. 2007); see also United States v. Rand, 403 F.3d 489, 495-96 (7th Cir. 2005).

Fillie contends that the court should not have exceeded the amount of

restitution agreed upon in Fillie’s plea agreement, but this argument is unavailing for

two reasons. First, nothing in the text of the Mandatory Victims Restitution Act

requires the court to limit its order of restitution to an amount agreed upon by the

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parties, and the parties’ plea agreement was not binding on the district court. Second,

before sentencing, Fillie objected to the amount of restitution listed in his plea

agreement, and the district court permitted Fillie to argue that he should be

responsible for a lower amount. Fillie therefore repudiated the restitution stipulation

before sentencing, and the court would have been free to disregard the figure in the

plea agreement even if it were ordinarily binding. Having concluded that the actual

loss suffered by the victims of the scheme was $770,551.08, the district court did not

clearly err by ordering Fillie to pay restitution in the same amount.

C.

Sumoso’s lone argument on appeal isthat the district court erred in calculating

the amount of loss attributed to him. Based on Sumoso’s involvement in the

conspiracy from 2007 to 2013, the court found that he was responsible for

$770,651.08 in actual loss, and increased his offense level by fourteen levels. See

USSG § 2B1.1(b)(1)(H).

Sumoso contends that he should not have been held responsible for losses that

occurred during periods of time when Sumoso was not living in the Twin Cities. The

government argues that the district court properly held Sumoso accountable for loss

during thistime, because Sumoso never affirmatively withdrew from the conspiracy. 

Under the sentencing guidelines, a conspiracy defendant is responsible for relevant

conduct, including reasonably foreseeable acts of others, “unless and until he

withdraws from the conspiracy in accordance with the common-law rule.” Spotted

Elk, 548 F.3d at 677. Whether Sumoso was properly held accountable for

$770,651.08 in actual losstherefore turns on (1) his understanding of the scope of the

conspiracy and whether his co-conspirators’ acts were foreseeable to him, and (2)

whether he withdrew from the conspiracy.

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The evidence tended to show that Sumoso understood the full extent of the

bank fraud scheme. As the district court explained, Sumoso “provid[ed] victim

account information,” “recruit[ed] runners, obtain[ed] counterfeit checks from the

manufacturers, provid[ed] checks to runners, and transport[ed] runners.” He also

attended meetings to discuss logistics and profit-sharing with Gaye, Fillie, and other

co-conspirators. There wassufficient evidence to support a finding that the activities

of Sumoso’s co-conspirators were reasonably foreseeable to him, given his

understanding of the nature of the scheme. The losses associated with these activities

are therefore attributable to Sumoso, unless he withdrew from the conspiracy during

the periods when he was living outside the Twin Cities.

Under the common-law rule, a defendant withdraws from a conspiracy when

he takes “affirmative action by making a clean breast to the authorities or by

communicating his withdrawal in a manner reasonably calculated to reach his

coconspirators.” United States v. Ortega, 750 F.3d 1020, 1024 (8th Cir. 2014)

(internal quotation marks omitted). “A showing of nothing more than that the

defendant has ceased activities is not sufficient to establish a withdrawal from the

conspiracy.” Id. (internal quotation marks omitted). The defendant bears the burden

of demonstrating withdrawal, id., yet Sumoso presented no evidence that he took

steps to end his involvement in the conspiracy when he was living in North Dakota

or southern Minnesota. Nor did he claim that he notified authorities of his

involvement in the conspiracy when he left the Twin Cities area.

The district court acknowledged that “the record demonstratesthat Mr. Sumoso

was sometimes in and out of the conspiracy,” but ultimately concluded that “there is

sufficient factual basis for the time that Mr. Sumoso wasinvolved in this conspiracy,”

and that “for the length of time that the government has demonstrated, he did play a

substantial role.” This conclusion was not clearly erroneous. Another chart prepared

by the investigators showed that Sumoso joined the conspiracy in August 2007 and

that the conspiracy continued until September 2013. Without evidence of affirmative

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withdrawal, it remained foreseeable to Sumoso that his co-conspirators would

continue the bank fraud scheme without his assistance. The court therefore properly

increased Sumoso’s offense level by fourteen levels.

* * *

For the foregoing reasons, the judgments of the district court are affirmed.

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