[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 10032 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cr - 20221

- PAS

- 1

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus MARIA HAYDEE LUZULA, Defendant

- Appellant.

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

________________________ (April 1, 2016) Before HULL , MARCUS and WILLIAM PRYOR , Circui t Judges. PER CURIAM: Maria Haydee Luzula appeals her sentence of 165 months of imprisonment following her pleas of guilty to one count of conspir ing to commit mail and wire

Case: 15-10032 Date Filed: 04/01/2016 Page: 1 of 52 fraud, 18 U.S.C. § 1349, nine counts of mail fraud, id. § 1341, fifteen counts o f wire fraud, id. § 1343, and two counts of attempted extortion , id. § 1951(a)

. On appeal, Luzula challenges the enhancement of her sentence for an amount of loss between $1 and $2 million and for her role as a leader of the conspiracy. We
affirm. Luzula and her son used their businesses in Miami, Florida, and Lima, Peru,
t o defraud residents of the United States who spoke Spanish. Luzula and her son obtained customer lists from companies who had sold products to the victims and directed employees in telep hone call centers o wn ed by Luzula’s son in Peru to contact the victims and to falsely represent that they were agents in a legal department of a private or government organization who were collecting over due payments for products the victims had purportedl y purchased

. Luzula and her son
i nteracted telephonically with the employees as they demanded payment f o r the fabricated orders . After victims agreed to pay bogus “fees” to settle the matter, the ir calls were routed to Miami where Luzula and her employees process ed the payments and mailed packages containing the products the victi ms allegedly had order ed . Investigators examine d Luzula’s computer database system and discovered that , between October 2012 and January 2014, she swindled $2 ,15 3,506.16 from 8, 477 victims that, after accounting for refunds, resulted in net

Case: 15-10032 Date Filed: 04/01/2016 Page: 2 of 53 proceeds of $1,739,964.44 . Luzula sent $828,531 to her son in Peru, and she used the remainder to purchase a house in Miami

. T he district court did not clearly err in calculating the amount of loss attributable to Luzula

. A defendant is subject to a 16

- level increase of her base offense level when her offense result s in a n actual or intended loss between $1 and $2 million , United States Sentencing Guidelines Manual § 2B 1.1(b)(1)(H) & cmt. n.3(A) (Nov. 2014) , and the government provided reliable and specific evidence that Luzula ’s fraud caused a loss within that range , United States v. Bradley , 644 F.3d 1213, 129 0 (11th Cir. 2011)

. Luke Shoemaker , a paralegal with the Department of Justice , provided a declaration that 88 to 9 4 percent of the victims

“ paid money in response to threatening calls.” Shoemaker screened recordings of the calls, and he identified 162,000 telephone calls from the Peru office involving
conversat ions lasting at least one minute and a smaller subset of calls in which the victims were threatened . Shoemaker used a random number formula to select 63 of the 8,477 victims who paid the Miami office, exclud ed six victims who did not pay between October 2012 and January 2014 or w hose c onversation he could not locate , and listened to the corresponding calls to verif y that 53 of the remaining 5 6 victims paid under threat of incurring pen alties or a lawsuit

. L uzula argues that Shoemaker should have ta ke n a l arger sample from all the recordings, but any calls not result ing in payments were irrelevant to calculating the percentage of

Case: 15-10032 Date Filed: 04/01/2016 Page: 3 of 54 payments. Luzula also argues that the computation was “sloppy and erroneous,” but she fails to establish that Shoemaker’s estimate was “so wildly inaccurate as to be unreasonable,” id. at 1292

. Luzula contend s that a significant percentage of the calls involved legitimate sales, but the district court was entitled to rely on trial testimony from Luzula’s former assistant, Pi a Silva, that , in December 2012, the
Peru office operat ed exclusively as a fraudulent collections agency and , in 2013, the Miami office processed payments only for fraudulent transaction s. T he district
court made a reasonable, conservative e stimate that Lu zula o btained 88 percent of her net proceeds, or about $1.5 million , through fraud and intimidation. See United States v. Barrington , 648 F.3d 1178, 1197 (11 th Cir. 2011). The district court also did not clearly err when it enhanced Luzula ’s sentence for her role as a leader in planning and executing the scheme to defraud. S ee U.S.S.G. § 3B1.1(a). Luzula argues that childhood abuse rendered her unable to make rational decisions and caused her to be subservient to her son , but the evidence proved that she was autonomous, having practiced law in Peru , studied marketing, a nd start ed her own business in the United States. Luzula admitted in her factual proffer that she owned and operated the payment and package processing center in Miami and th at she “directly and indirectly exercised control over the phone rooms in Peru,” where employees “acting directly and indirectly under [her] and [her son’s] direction, contacted the victims and falsely claim ed that

Case: 15-10032 Date Filed: 04/01/2016 Page: 4 of 55 they were calling from a ‘legal departmen t’ . . . of a private entity [or] a state or city.” Other evidence proved that Luzula acquired and paid for telephone and video communication and recording systems in Peru and Miami ; purchased customer lists used to identify victims; prepared scripts and c oached employees how to contact and co erce v ictims; hired, fired, and trained employees in Miami ; determined what amount to demand from victims; oversaw the issuance of refunds; controlled bank accounts; and divided the proceeds of the fraud

. See id. § 3B1.1
cmt. n.4. Although Luzula’s son participated in some of the tasks and o perated the
Peru office , Luzula did not “ have to be the sole leader or kingpin of the conspiracy in order to be considered an organizer or leader within the meaning of the Guide lines

. ” United States v. Rendon , 354 F.3d 1320, 1332 (11th Cir. 2003) (quoting United States v. Vallejo , 297 F.3d 1154, 1169 (11th Cir. 2002) ). The district court reasonably de termined that Luzula was subject to a four

- level increase of her base offense le vel under section 3B1.1 (a)

. We AFFIRM Luzula’s sentence. Case: 15-10032 Date Filed: 04/01/2016 Page: 5 of 5