[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 10303 Non

- Argument Calendar

________________________ D.C. Docket No. 8:13

- cr - 00488

- RAL

- AEP

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus JAMESHIA MACK, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (November 5, 2014) Before MARCUS , WILLIAM PRYOR and KRAVITCH , Circuit Judges. PER CURIAM: Jameshia A licia Mack appeals her total 75

- month sentence, imposed after she pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and

Case: 14-10303 Date Filed: 11/05/2014 Page: 1 of 72 one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. On appeal, Mack argues that her sentence was procedurally unreasonable because the district court erred in applying three guideline enhancements to her advisory guidelines range. Because we conclude that Mack cannot show that her sentence would have been shorter but for the alleged errors, we affirm.
I. Mack was charged by information with wire fraud and aggravated identity theft in connection with the filing of fraudulent tax returns in 2011 and 2012 and pl acing the refunds on prepaid debit cards

. In the factual basis, the government alleged that Mack filed fourteen fraudulent returns, two in her name and twelve in the names of other individuals , using names and social security numbers she found on a county website. Mack waived indictment and agreed to plead guilty without a plea agreement. At the change

- of

- plea hearing, Mack admitted the factual basis set forth by the government. Mack also admitted that, by committing these offenses, she violated the con ditions of her supervised release , which she was subject to due
to prior fraud convictions

. Mack later advised the court that she challenged portions of the factual basis, specifically the number of returns filed and the amount of loss. Because this was a sentencing issue, and Mack did not otherwise challenge her guilt, the court accepted Mack’s guilty plea

.

Case: 14-10303 Date Filed: 11/05/2014 Page: 2 of 73 The probation officer determined that the adjusted offense level for the wire fraud count was 18. These calculations included an intended amount of loss of approximately $120,000, an increase for the use of a victim’s social security number under U.S.S.G. § 2B1.1(b)(11)( C)(i) , 1 and an enhancement for the number of victims. Mack had a criminal history category IV based on multiple prior instances of fraud and identity theft , including bank fraud conspiracy and identity theft convictions in Kentucky in 2007 for which Mack was currently on supervised release. The resulting adviso ry guideline range for the wire

- fraud count was 41 to 51 mont hs’ imprisonm ent. The identity

- theft count carried a mandatory consecutive 24

- month sentence. Mack objected to the amount of loss, arguing that she had fil ed only four returns, for a total of $36,948. She further stated that there was no evidence she filed fraudulen t returns in 2012, as the police had confiscated the prepaid debit cards holding the refunds during a t raffic stop in June 2011. At s e nt e n cing, the investigating agent testified concerning the fraudulent returns filed in 2011 and 2012, and the use of pre p aid debit cards

. The agent stated that he had connected the false returns to Mack based on a pattern in the filings in which Mack sought a refund based on interest or dividends in whole dollar amounts, in large sums just under the $10,000 mark. He also noticed the same spelling errors among the

1 T he probation officer cit ed §2B1.1(b)(11)(B) , but the parties agree that t he correct citation is § 2B1.1(b)(11)(C)(i).

Case: 14-10303 Date Filed: 11/05/2014 Page: 3 of 74 returns. He further explain ed that identity thieves prefer to use prepaid debit cards because it i s easy to transfer funds from on e card to another if the card i s lost or stolen, or , as in this case , c onf iscated. He explained that not all of the fraudulent returns were paid, thus although Mack filed returns for about $120,000, t he IRS actually paid only $100, 135 , and the debit cards found in Mack’s possession at her
arrest held $53,640

. The court overru led Mack’s objection to the amount of loss , and after considering the sentencing factors in 18 U.S.C. § 355 3, the court sentenced Mack
to 51 months’ imprisonment for wire fraud, to be followed by the mandatory 24

- month sentence for aggravated identity thef t. Discussing the sentencing factors, the court stated that Mack was a “thief” and “a fraud,” and it was necessary to protect the public from her schemes, promote respect for the law, and provide deterrence. The court considered an upward variance based on these factors, but ultimately determined that a sentence at the high end of the range was substantively reasonable. The court then stated: Further, I find I [sic] agreed with the defendant’s contention that the total offense level should be lower, that I would still have imposed the sentence I imposed as to count one. Although that would have been an upward variance, it would have been supported by the evidence and th e statutory sentencing factors. Case: 14-10303 Date Filed: 11/05/2014 Page: 4 of 75 Finally, the court revoked Mack’s supervised release and sentenced her to 14 months’ imprisonment to run consecutive to the rest of her sentence. This is Mack’s appeal.
II. Ordinarily, w e review a district court’s interpretation and application of the Sentencing Guidelines de novo and accept the court’s factual findings unless they are clearly erroneous. See, e.g. , United States v. Cruz , 713 F.3d 600, 605 (11th Cir.), cert. denied , 134 S. Ct. 213 (2013). But a n argument raised for the first time on appeal is reviewed only for plain error. See, e.g. , United States v. Pantle , 637 F.3d 1172, 1174 (11th Cir. 2011). Plain error review is “limited and circumscribed” and requires satisfaction of four difficult

- to

- meet criteria : The defendant must first show that there is (1) error, (2) that is plain, and (3) that affects substantial rights. United States v. Jones , 743 F.3d 826, 829 (11th Cir. 2014). Once these requirements are met, we may only exercise our “discretion to notice a f orfeited error” if the error (4) “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. An error in the calculation of the guidelines range does not necessarily affect a defendant’s substantial rights. See Pantle , 637 F.3d at 1177

- 78. To show that an error affected substantial rights, a defendant must show that there is a “reasonable probability” that she would have received a lighter sentence but for the error. Jones , 743 F.3d

Case: 14-10303 Date Filed: 11/05/2014 Page: 5 of 76 at 830. This requires a defendant to “point to something in the record showing that the most likely result on remand is for the sentencing judge to give [her] a shorter
sentence.” Id. Mack alleges that the district court (1) impermissibl y double count ed the identity theft and number of victims in determining her guideline range f or the wire fraud offense because she was also charged with the substantive offense of identity the ft ; (2) incorrectly determin ed the total number of victims because she admitted filing only four false returns; and (3) improperly calculat ed the amount of loss without taking into consideration the cash she turned in when she was stopped by police in 2011. 2
We conclude that Mack has not satisfied her burden to establish plain error. 3
Even if Mack could show an error that was plain in the district court’s calculation of her guideline range for wire fraud , the court expressly stated that it would impose the same sentence via an upward variance if it had calculated the guideline range differently. Although Mack contends that the court’s statement refers only

2 Mack’s challenge to the amount of loss was not sufficient to preserve a challenge to the number of victims or a credit for funds returned because she did not men tion these objections specifically

. United States v. Zinn , 321 F.3d 1084, 1088 (11th Cir. 2003) ; see also U nited States v. Ramirez

– Flores , 743 F.3d 816, 821 (11th Cir. 2014) (holding that “[t]he defendant .

. . fails to preserve a legal issue for appeal if the factual predicates of an objection are included in the sentencing record, but were presented to the district court under a different legal theory” (alteration in original) (emphasis and quotation marks omitted)).

3 We need not determine whether the court committed an error if the defendant has not met the third prong of plain

- error review, that is, she has not shown that her sentence would have been shorter. See Pantle , 637 F.3d at 1177 (assuming plain error but c oncluding that the defendant failed to show it affected his substantial rights).

Case: 14-10303 Date Filed: 11/05/2014 Page: 6 of 77 to the sentence it would have imposed had it agreed with Mack’s calculation of the amount of loss, we disagree. Reading the court’s statement in context, the court explained that the 51

- month sentence was substantively reasonable given Mack’s history and characteristics and the need to provide protection and deterrence , and, had the gui deline range been lower, the court would have imposed this sentence using an upward variance

. The burden is on Mack to meet this third prong of plain

- error review. Pantle , 637 F.3d at 1177. Mack has failed to meet her burden because she cannot show a re asonable probability that her sentence would have be en shorter with the lower guidelines range. AFFIRMED. Case: 14-10303 Date Filed: 11/05/2014 Page: 7 of 7