[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 10960 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cr - 00260

- LMM

- LTW

- 1
UNITED STATES OF AMERICA, Plaintiff

- Appellee,
versus TESSEMA LULSEGED, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ ( May 16, 2017 ) Before JULIE CA RNES , JILL PRYOR, and FAY , Circuit Judges. PER CURIAM:

Case: 16-10960 Date Filed: 05/16/2017 Page: 1 of 152 Tessema Lulsege d appeals his 51

- month sentence , restitution , and forfeiture following his guilty plea to one count of food

- stamp trafficking. We affirm. I. BACKGROUND Lulseged, a naturalized United States citizen born in Ethiopia, owned and operated Tess Market, Inc., d/b/a Big T Supermarket (“Big T”), in Decatur, Georgia. Lulseged was authorized to accept food stamps and knew it was illegal to exchange foo d stamps for cash at face value or at a discount. From 2009 until 2014, Lulseged allowed c ustomers to exchange their food

- stamp benefits at the rate of $ 0 .60 on the dollar. As part of the deal, Lulseged required the customers to purchase eligible

- food product s from his store equal to ten percent of the value of the transaction. Lulseged trafficked in food stamps of a value of $5,000 or more. 1 In 2014, Lulseged was charged with one count of trafficking in food stamps, in violation of 7 U.S.C. § 2024(b)(l) and 18 U.S.C. § 2. The indictment included a forfeiture provision stating Lulseged would fo rfeit all property derived from proceeds traceable to the crim e.

1 The Supplemental Nutrition Assistance Program is administered by the United States Department of Agriculture (“USDA”) to help eligible families in need of food assistance. Food stamps are issued in Georgia through the use of the Electronic Benefit Transf er (“EBT”) system. Each recipient is given an EBT card credited with a specific monetary amount per month; the account balance is electronically reduced when a food purchase is made at a participating store. Stores must apply for and receive authorization from the USDA before accepting food stamps. Food stamps are non

- transferable, cannot be used to buy certain items such as alcohol or tobacco, and cannot be exchanged for cash. Purchasing or selling food

- stamp benefits in exchange for cash i s referred to as “trafficking.”

Case: 16-10960 Date Filed: 05/16/2017 Page: 2 of 153 At his arraignment and detention hearing, a magistrate judge asked Lulseged if he needed an interpreter in order to understand the court proceedings
. Lulseged replied he understood what was taking place without the use of an interpreter. The government then noted at a n earlier meeting Lulseged had said he did not understand English , but his lawyer at the time confirmed she had had a number of conversations where she and Lulseged communicated clearly in Engl ish. The government had arranged for an interpreter at that time, who spoke Amharic, Lulseged ’ s native language, but Lulseged stated he did not underst and the interpreter. Lulseged’ s attorney at the arraignment hearing confirmed he had not had any problems communicating with Lulseged over th e course of his representation. The magistrate judge then informed Lulseged the court would provide him with an i nterpreter to assist him, if need ed. Lulseged replied his English was at a “twelfth grade” level, and while he may not understand “ really difficult ” words, he could communicate. Arraignment Hr’g Tr. at 6 (Apr. 28, 2015)
. The magistrate judge stressed Lulseged should ask if he did not understand something during the proceedi ngs, and Lulseged replied, “ [ y ] es, I will let you know, and I will let [my] attorney [know], too.” Id. Lulseged entered a not
- guilty plea to the charge in the indictment. A t a change

- of

- plea hearing in July 2015, Lulseged agreed to enter a non negotiated

- guilty plea
. He state d he had signed the proffered plea

- with

- counsel

Case: 16-10960 Date Filed: 05/16/2017 Page: 3 of 154 form
. O n examination by the district judge , Lulseged stated he was 49

- years old , had been born in Ethiopia, had a twelfth

- grade educa tion, and could read and write. Lulseged then answered questions abou t his health, and his attorney stated he had
no doubt as to Lulseged’s com petency to enter a guilty plea. The judge reviewed Lulseged’s constitutional rights and confirmed Lulseged understood them
. Lulseged did not st ate he had any difficulty understanding the judge’s description of his rights or otherwise object to the absence of an inte rpreter. The judge review ed the elements of the crim e. T he parti es agreed the total

loss amount involved more than $5,000, but the exact amount was dispute d
. The parties agreed to resolve the issue of the t otal

- loss amount at sentencing. Lulseged confirmed he understood h is pleading guilty could subject him to forfei ture up to and including the amounts contained in the indictment
. After presenting a summary of what it would have prove d beyond a reasonable doubt had the case gone to trial, the government had initiated civil

forfeiture proceeding s against the illegally obtained money as well as against Lulseged’s personal residence and his store property. Lulseged’s brothers had claimed an interest in funds seized from two bank accounts; the government had settled with them. Lulseged did not file a claim regarding any of the property or money implicated in the civil

- forfeiture action. He stated he had no disagreement

Case: 16-10960 Date Filed: 05/16/2017 Page: 4 of 155 with the facts of the crim e and understood his pleading guilty could subject him to a sentence up to the maximum allowed , 20 years of imprisonment
. The judge questioned Lulseged about whether he understood how sentencing and the Sentencing G uidelines function ed; Lulseged stat ed he was fully aware of the process. Lulseged s aid he had discussed the government ’ s offer of a plea agreement with his lawyer . Nonetheless , he did not want a plea agreement and wanted to proceed with entering a non - negotiated guilty plea. Lulseged asked the judge to repeat the question of whether “ anyone made [him] any promises or representati ons to ge t [him] to plead guilty.” Guilty Plea Proceedings Tr. at 27 (July 7, 2015 )
. The judge repeated the question and did so a third time wh en Lulseged again asked for it; Lulseged confirmed “no, nobody” had made any promises or representations to induce him t o plead guilty. Id. at 28
. He also confirmed no one had made any promise concerning wh at his actual sentence would be. Lulseged pled guilty ; the judge found he had done so freely and voluntarily. The probation office prepared a Presentencing Investigation Report (“PSI”) , assign ing Lulseged a base

- offense level of 7 under U
. S
. S
. G
. § 2B1. 1(a)(1) , based on his conviction for trafficking in food stamps. The PS I showed Big T redeemed
a total of $8,085,926.29 in food

- stamp benefits o ver the course of the crime. The PS I stated Big T purchased only $745,596.68 in food

- stamp
- eligib le inventory

Case: 16-10960 Date Filed: 05/16/2017 Page: 5 of 156 during that time
. Assuming Lulseged marked

- up his food

- stamp
- eligible inventory by 35% (industry standard is 26.71%), Big T could have received a maximum of $1,006,555.52 from the sale of food

- stamp
- eligible products during h is crime. The PSI show ed the loss to the government was $7,079,370.77, the difference between Big T’s total food

- stamp redemptions and the amount Big T could have received fr om food

- stamp
- eligible sales. Th e PS I show ed an additional 20 levels under the 2014 version of U
. S
. S
. G
. § 2B1.1(b )(1)(K) for a loss of more than $7,000,000 , but less than $20,000,000 2 and two additional levels under U
. S
. S
. G
. § 3B1.3 for abuse of trust. Pursuant to U
. S
. S
. G
. § 3El.l(a) and (b), the probation officer recommended Lulseged receive a three

- level reduction for acceptance of responsibility. The PSI showed Lulseged had zero criminal

- history point s, which resulted in a criminal

- history category of I, a n offense level of 26, and a Gu idelines imprisonment range of 63 to 78 months. Lulseged objected to the loss amounts and calculation processes in the PSI
. Following several continuances , sentencing began on December 18, 2015. United States Department of Agriculture Special Agent Robert Harper testified in support of the government’s proposed total

- loss amount. Lulseged called a

2 The PS I was drafted in anticipation the sentencing hearing would take place on September 22, 2015. The sentencing hearing was postponed several times, however, and did not take place until after the 2015 version of the Se ntencing Guidelines had gone into effect. Under the revised Guidelines, a loss of more than $3,500,000, but less than $9,500,000, results in an increase of only 18 levels, rather than 20. U
. S
. S
. G
. § 2B1.1(b)(1)(J). The district judge use d the Sentencing Guidelines in effect on the date Lulseged was sentenced. U
. S
. S
. G
. § 1B1.11.

Case: 16-10960 Date Filed: 05/16/2017 Page: 6 of 157 Certified Public Account ant , Michael W. Thompson, to testify in support of his proposed total

- loss amount. The judge found the evidence presented supported the government’s total

- loss calculations , and Lulseged had failed to rebut that evidence. The judge noted it was the government, and not Lulseged, that bore the burden of establishing a r easonable estimate of the total

- loss amount. The judge applied the same 35% mark

- up the government had used in its calculations, and subtracted $694,278.72 from the government’s proposed loss amount of $7,055,728.88, resulting in a final sum of $6,361,450.16. The judge overruled Lulseged’s objection to an 18

- level enhancement , based on a loss amount between $3,500,000 and $9,500,000. U
. S
. S
. G
. § 2B1.1(b)(1)(J) ( 2015 ). The government also agreed to concede restitution should be decreased by the amount Lulseged arg ued was barred by the statute of limitations, $431,000, if the judge wanted to make a restitution order final at the hearing. Based on the government’s concession, the ju d ge determined the final restitution amount was $5,930,450 .16. The judge found the offense level was 24, the criminal

- h istory category was I, and the G uideline s imprisonment range was 51 to 63 months. The judge found the forfeiture amount was $5,930,450.16, minus whatever proceeds Lulseged already had for feited as a result of the civil

- forfeiture action. After heari ng arguments from both parties, and considering the sentencing factors in 18 U.S.C. § 3553(a), the district judge imposed a senten ce of 51 months

Case: 16-10960 Date Filed: 05/16/2017 Page: 7 of 158 of imprisonment and restitution i n the amount of $5,930,450.16. The judge
over ruled Lulseged’s objection to the restitution amount
. Following sentencing, the judge entered a final forfeiture order for $4,948 , 795.11, reflecting the amount
announce d at sentencing, $5,930,450.16, reduced by the amount Lulseged already had forfeited in the civil forfeiture proceedings
. On appeal, Lulseged argues the district judge had a duty at his guilty plea and sentencing hearings to inquire as to whether he required an interpreter in order t o understand those proceedings; the judge’s failure to do s o invalidated his sentence, because he could not compreh end his own sentencing hearing. He also contends the government failed sufficiently to meet its burden of proving a reasonable estimate of the tota l loss involved in the crim e . He further argued th e judge had erred in enhancing his G uideline s imprisonment range , based on that total

- loss amount and in basing the restitution and forfeiture orders on the government’s inaccurate total

- loss amount. II. DISCUSSION A. Interpreter Objections or arguments n ot raised in the district court are reviewed for plain error. See United States v. Evans , 478 F.3d 1332, 1338 (11th Cir. 2007).

“ Plain error occurs where (1) the re is an error ; (2) that is plain or obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial and not

Case: 16-10960 Date Filed: 05/16/2017 Page: 8 of 159 harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings. ” United States v. Horsfall , 552 F.3d 1275, 1284 (11th Cir. 2008) (citation and internal quotation marks omitted)
. “ An error is not plain unless it is contrary to explicit statutory provision s or to on
- point precedent in this C ourt or the Supreme Court. ” United States v. Schultz , 565 F.3d 1353, 1357 (11th Ci r. 2009). Both the Court Interpreters Act and the Constitution commit the appointment of an interpreter to the sound discretion of the trial judge. Valladares v. United States , 871 F.2d 1564, 1566 (11th Cir. 1989). The basic inquiry is whether the fai lure to provide an interpreter made a proceeding fundamentally unfair. United States v. Tapia , 631 F. 2d 1207, 1210 (5th Cir. 1980). The Court Interpreters Act provides a district judge shall utilize an interpreter if the presiding judicial off icer determ ines on such officer’ s own motion or on the motion of a party that such party (including a defendant in a criminal case), or a witness who may present testimon y in such judicial proceedings

-- (A) speaks only or primarily a language other than the English l anguage . . . so as to inhibit such party ’ s comprehension of the proceedings or communication with counsel or the presiding judicial officer, o r so as to inhibit such witness’ comprehension of questions and the presentation of such testimony
. 28 U.S.C. § 1827(d)(1). “Any indication to the presiding judicial officer that a criminal defendant speaks only or primarily a language other than the English language should trigger the application of Sections (d) and (f)( 1) [defendant’s waiver of the right to an in terpreter] of the Court Interpreters Act.” Tapia , 631

Case: 16-10960 Date Filed: 05/16/2017 Page: 9 of 1510 F.2d at 1209. We have held the Act places “on the trial court a mandatory duty to inquire as to the need for an interpreter when a defendant has difficulty with English.” Valladares , 871 F.2d at 1565
. The defendant , however, usually bears the burden of establishing an error prejudiced him. United States v. Olano , 507 U.S. 725, 734 , 113 S. Ct. 1770, 1778 (1993). As a constitutional matter, in determining whether an interpreter is needed, the distric t judge must balance the defendant’ s rights to due process, confrontation of witnesses, effective assistance of counsel, and to be present at his trial “against the public ’ s interest in the economical ad ministration of criminal law.” Valladares , 871 F.2d at 1566
. In view of the record from the arraignment and change of plea hearing, it is clear this case is quite different from Tapia , on which Lulseged heavily r elies. In Tapia , the defendant was arraigned through an interpreter and the defendant testified on his own behalf using an interpreter. See Tapia , 631 F.2d at 1209. W e concluded the district judge should have inquired into whether an interpreter was necessary for him to understand the proceedings. Id. The judge in this case had no such obligation, because there were not sufficient indications Lulseged did not have a sufficient grasp of English to require an interpreter. Lulseged’s arraignment was held en tirely in Engli sh; at that time, the judge did inquire as to whether an interpreter might be necessary going forward. Both Lulseged and his attorney st ated a n interpreter was not necessary, because he understood and could

Case: 16-10960 Date Filed: 05/16/2017 Page: 10 of 1511 communicate in English competently. Lulseged ad dressed the judge , in English, at his change of plea and sentencing hearings. Because the district judge was not on notice Lulseged could not understand or communicate effectively in English, the judge did not err by failing to conduct further inquiry in to whether his comprehension of the proceedings or communication with his counsel would be inhibited by difficulty with the English language. Valladares , 871 F.2d at 1565

- 66. E ven if it was error for the judge not to ask at the guilty plea and sentencing hearings if Lulseged need ed an interpreter, such error was not plain. See Horsfall , 552 F.3d at 1284. A n error cannot be plain unless it is contrary to on

- point precedent from th e Supreme Court or this court
. See Schultz , 565 F.3d at 1357
. Because t here is no on

- point precedent , the judge properly determined no interpreter was required, based on the representations of Lulseged and his attorney . B. Loss Amount We review a district judge’s findings of fact concerning the loss amount for clear error a nd the methodology for calculating loss de novo. United States v. Woodard , 459 F.3d 1078, 1087 (11th Cir. 2006). We will not overturn a loss calculation under the clear

- error standard “ unless we are left with a definite and firm conviction that a mistake has been committed. ” United States v. Crawford ,

Case: 16-10960 Date Filed: 05/16/2017 Page: 11 of 1512 407 F.3d 1174, 1177 (11th Cir. 2005) (citation and internal quotation marks omitted)
. We also review the legality of a restitution order for clear error. United States v. Rodriguez , 751 F.3d 124 4, 1260 (11th Cir. 2014). W e review the legality of a forfeiture order de novo and the district judge’s factual findings for sufficiency of the evidence. United States v. Hasson , 333 F.3d 1264, 1275 (11th Cir. 2003). Objections or arguments not raised b efore the district judge are reviewed for plain
error. See Evans , 478 F.3d at 1338. In a case involving government b enefits such as entitlement

- program payments, “ ‘ loss shall be considered to be no t less than the value of the benefits obtained by uninte nded recipients or diverted to unintended uses, as the case may be. ’ ” United States v. Maxwell , 579 F.3d 1282, 13 06 (11th Cir. 2009) (quoting U.S.S.G. § 2B 1.1 cmt . n.3(F)(ii)). The Sentencing Guidelines provide if the judge finds the total

- loss amount ex ceeds $ 3,500,000, but is less than $9,5 00,000, the offense level must be increased by 18 levels. U.S.S.G. § 2B1.1(b)(1)(J). The government bears the burden of proving the loss amount at sentencing by a preponderance of the evidence. 18 U.S.C. § 3664(e); United States v. Sepulveda , 115 F.3d 8 82, 890 (11th Cir. 1997). A judge may base factual findin gs at sentencing on undisputed statements in a PSI or evidence presented at the sentencing hearing. United States v. Ndiaye , 434 F.3d 1270, 1300 (11th Cir. 20 06 ). Case: 16-10960 Date Filed: 05/16/2017 Page: 12 of 1513 “ Given the nature of [economic] c rimes, the financial damage done may often be difficult to calculate with precision; consequent ly, the Sentencing Guidelines only require district courts to make ‘a reasonable estimate of the loss.’” United States v. Campbell , 765 F.3d 1291, 1301 (11th Ci r. 2014) (quoting U.S.S.G. § 2B1.1 cmt. n.3(C))
. We have held the appropriate method for estimating loss is highly fact

- dependent, and district judges are entitled to “considerable leeway” in approaching th at task. Id. A district judge , however, is not completely unfettered in calculating the loss amount ; the loss calculation must be support ed with reliable and specific evidence. Id. A restitution amount must be based on the amount of loss actually caused by the defendant’s conduct. United States v. Baldwin , 774 F.3d 711, 728 (11th Cir. 2014). The government must prove the restitution amount by a preponderance of the evidence. See 18 U.S.C. § 3664(e). Similar to calculation of the loss amount, we have noted “the determination of the restitution amo unt is by nature an inexact science.” United States v. Huff , 609 F.3d 1240, 1248 (11th Cir. 2010) (citation and internal quotation marks omitted)
. T he government need provide only a reasonable estimate of the amount owed. United States v. Martin , 803 F. 3d 581, 595 (11th Cir. 2015). A restitution order may be awarded for loss caused by conduct outside the statute of limitations. United States v. Dickerson , 370 F.3d 1330, 1338, 1341

- 42 (11th Cir. 2004).

Case: 16-10960 Date Filed: 05/16/2017 Page: 13 of 1514 The district judge held two hearings focusing al most exclusively on how to calcu late the total

- loss amount. The judge reasonably relied on the government’s methodology, which calculated the loss amount as the difference b etween the total amount of food

- stamp redemptions Lulseged had made over the relevant time period, minus the value of documented food

- stamp
- eligible inventory he had in his store over that same period, based on records from vendors and Lulseged’s convenience store. This vendor

- based method of calculating the total

- lo ss amount reasonably determine d the amount of benefit Lulseged received, because it
a ccounted for the amount of food

- stamp redemptions he received from the government, “value of the benefits obtained by unintended recipients,” less the amount of revenue th e sale of al l the potential

- food

- stamp products he had at his store would have produced. See Maxwell , 579 F.3d at 13 06. Second, Lulseged’s challenge to the restitution order fails, because the district judge did not clearly err in basing the restitutio n amount on the total

- loss

amount calculations. See Rodriguez , 751 F.3d at 1260. T he district judge made a reasonable estimate of the amount of loss Lulseged’s crime caused and therefore made a reasonable estimate of the amount he owed in restitution. S ee Martin , 803 F.3d at 595 ; Baldwin , 774 F.3d at 728 . O n de novo review, the district judge applied a valid method of calculating the total

- loss amount. See Woodard , 459 F.3d at 1087.

Case: 16-10960 Date Filed: 05/16/2017 Page: 14 of 1515 Finally, Lulseged did not object to the forfeiture amount at sentencing ; consequently , we review that order for plain error. See Evans , 478 F.3d at 1338. Because the total

- loss amount and restitution amounts were reasonable, and the judge did not clearly err in th os e calculations, the judge did not err in calculating the forfeiture amount, which was identi cal to the restitution amount. AFFIRMED. Case: 16-10960 Date Filed: 05/16/2017 Page: 15 of 15