[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 14718 Non

- Argument Calendar

__________ ______________ D.C. Docket No. 0 : 15

- c r
- 60045

- WJZ

- 1

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

versus BRANDI MARY JANICE STROMAN , Defendant

- Appellant

.

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

________________________ ( September 14, 2016 )
Before HULL, MARCUS , and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 15-14718 Date Filed: 09/14/2016 Page: 1 of 102 Defendant

- Ap pellant Brandi Mary Janice Stroman, a federal inmate, appeals from the final judgment and commitment order entered by the U nited States
District Court for the Southern District of Florida on October 14, 2015. During sentencing, the district cou rt applied a three

- level enhancement to Stroman’s base
offense level pursuant to U.S.S.G. § 3B1.1(b) for her aggravating role in the
offense. On appeal, Stroman argues that the district court committed clear error in applying the three

- level §3B1.1(b) enhan cement. Stroman further claims that the
district court committed clear error in declining to grant a reduction in Stroman’s
base offense level based on her minor role in the offense pursuant to § 3B1.2 (b)

. Upon careful review of the record and the briefs, we affirm. The Federal Sentencing Guidelines provides that a sentencing judge may increase the offense level based on the defendant’s aggravating role in the offense
as follows: Based on the defendant's role in the offense, increase the offense level as fo llows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. Case: 15-14718 Date Filed: 09/14/2016 Page: 2 of 103 (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

U.S.S.G. § 3B1.1. As indicated by the text of the Sentencing Guidelines, to qualify
for a three

- level enh ancement pursuant to § 3B1.1(b), the court must find that (1) the defendant was “a manager or supervisor (but not an organizer or leader); and (2) the criminal activity involved five or more participants “or was otherwise
extensive.” Application Note 2 cla rifies the type of leadership role a defendant must play in a conspiracy to warrant an enhancement: To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participant s. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a crimin al organization.
Id

. § 3B1

. 1 ( c ), cmt. n.2

. Application Note 4 lists a number of factors for the district court to consider in determining the extent of the defendant's aggravating role, including the following: [T]he exercise of decision making 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 Case: 15-14718 Date Filed: 09/14/2016 Page: 3 of 104 in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Id

. §3B1

. 1 ( c ), cmt. n.4. The Federal Sentencing Guidelines provides that a sentencing judge may
decrease the base offense level bas ed on the defendant’s mitigating role in the
offense as follows: Based on the defendant's role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between (a) and (b), decrease by 3 levels. § 3B1.2. In determining whether a defendant’s role was “minor,” a district court
consider s two principles. “ F irst and foremost, the district court must measure the defendant’s role against the relevant conduct for which she has been held
accountable.” United States v. Rodri guez D e Varon , 175 F.3d 930, 940 (11th Cir. 1999) (en banc). “ In other words, the district court must assess whether the defendant is a minor or minimal participant in relation to the relevant conduct attributed to the defendant in calculating her base offense level. ” Id. at 941. “ Only if the defendant can establish that she played a relatively minor role in the conduct for which she has already been held accountable

– not a minor role in any larger

Case: 15-14718 Date Filed: 09/14/2016 Page: 4 of 105 criminal conspiracy

– s hould the district court grant a downward adjustment for
minor role in the offense. ” Id. at 944. Second, “ the district co urt m ay also measure
the defen dant’s culpability in comparison to that of other partic ipants in the
relevant conduct.” Id. However, “[r] elative culpability does not end the inquiry .”
Id. “ The fact that a defendant's role may be less than that of other participa nts engaged in the relevant conduct may not be dispositive of role in the offense, since it is possible that none are minor or minimal participants. ” Id. “ Rather, the district

court must determine that the defen dant was less culpable than most other participants in her relevant conduct.” Id. In the instant case, Stroman pled guilty to four counts related to her admitted involvement in a conspiracy involving the use of stolen personal identity information to obtain and deposit fraudulent tax receipts in the bank accounts of
herself and her various co

- conspirators. At sentencing, the district court found by a preponderance of evidence that Stroman was “a manager or supervisor” because she “specifically directed other codefendants to withdraw funds and to meet with
her thereafter.” DE 223:41. The district court also found by a preponderance of evidence that Stroman’s criminal activity “was otherwise extensive” because
Stroman filed at least 27 fraudulent tax returns with the Internal Revenue Se rvice,
which resulted in 14 fraudulent refunds being deposited into the accounts of
Stroman or her codefendants. DE 223:40

- 41. The district court then determined

Case: 15-14718 Date Filed: 09/14/2016 Page: 5 of 106 that Stroman was not entitled to a mitigating role downward departure because
“Stroman was a m ajor participant in th[e] scheme.” DE 223:41. The district court further stated that “[t]he very fact that she might have been less culpable than [codefendant] Mr. Bryant is not an indication that she was not otherwise a major participant in this scheme.” DE 223:41. We review the district court’s application of the Sentencing Guidelines de

novo and its factual findings for clear error. United States v. Lee , 427 F.3d 881, 892 (11th Cir. 2005). On appeal, Stroman argues that the district court clearly erred in applying a
three

- level increase to the base offense level pursuant to § 3B1.1(b) for h er aggravating role. Specifically, she argues that she was not a “manager or supervisor” and that the “otherwise extensive” prong of § 3B1.1(b) was not met.
Stroman furt her argues that the dist rict court clearly erred in declin ing to apply a
two

- level decrease in her base offense level based on her “minor” ro le in the offense pursuant to § 3B1.2(b). First, Stroman claims that that the district court clearly erred in finding that she was a “manager or superv isor” for the purposes of the § 3B1.1(b) enhancement because, according to Stroman, she “simply followed the instructions” of
codefendant Michael Bryant, whom she refers to as the “mastermind” of the
criminal conspir acy
. We disagree. Stroman’s own factual proffer supports the

Case: 15-14718 Date Filed: 09/14/2016 Page: 6 of 107 district court’s finding that Stroman specifically directed other codefendants in the tax fraud conspiracy. See, e.g. , DE 116:2 (“[T]he defendant obtained the bank
account information of co

- defen dants . . . . The defendant then provided the account information to the target, and the target filed the false returns, generating fraudulent refunds, and using the bank account information of the co

- defendants to receive the refunds. After the money was deposited into the accounts, the
defendant then contacted the co

- defendants, and directed them to withdraw the funds.”). Second, Stroman claims that the “otherwise extensive” pr ong of § 3B1.1(b)
was not met because , unlike Bryant, she was not responsible for “directly procuring the [personal identity i nformation] in the conspiracy.” Indeed, Stroman has consistently argued that the “ otherwise extensive” prong of § 3B1.1(b) is not met because Stroman’s participation was less severe th an Bryant’s participation. For instance, at the sentencing hearing, Stroman’s counsel and the court engaged in the following colloquy:
THE COURT: So tell me why this criminal activity that involved Ms. Stroman was not otherwise extensive.
MR SAMMS: Well, because, Judge, I think her involvement was not otherwise extensive. I think the “otherwise extensive” would apply to Michael Bryant, in other words, or the people that actually got the personal identifiers. She never got any personal identifiers from anyo ne. She was provided that by Michael Bryant. Michael Bryant is the one that contacted the female that Case: 15-14718 Date Filed: 09/14/2016 Page: 7 of 108 worked at the healthy agency, and they worked out a way to actually go into the computers and get all those personal identifiers. That is otherwise extens ive, those kinds of activities where you’re going beyond just the normal cashing of checks. You’re going beyond. You’re otherwise extensive when you have a way of getting the personal information. You are otherwise extensive when you have a way of manipulating the computer system to get those identifiers. You are extensive when you can get someone who was involved in the healthcare industry to give you the code to break into the

-- through the computers and get those personal identifiers . That is otherwise extensive. Ms. Stroman took a check and put it in her account. That’s not otherwise extensive. And so that is wh y I don’t think that position also applies to her as well.
DE 2 2 3:10

- 11. Stroman’s argument both below and on appeal appears to assume that the

term “otherwise extensive” in § 3B1.1(b) refers to the relative degree or amount of a defendant’s participation in a criminal conspiracy vis

- à

- vis other codefendants . It
does not. T he plain text of § 3B1.1(b) indicates that the subject modified by the adjectival phrase “otherwise extensive” is not the relative degree or amount of
involvement vis

- à

- vis other codefendants but rather the quality of the “ criminal activity ” itself. Thus, the prong is satisfied if “ the criminal activity involved five or more particip ants or was otherwise extensive

. ” U.S.S.G. § 3B1.1(b) . The phrase “other extensive,” accordingly, refers to “other” ways

— besides the number of participants

— that “ criminal activity ” may be considered “extensive.” Although

Case: 15-14718 Date Filed: 09/14/2016 Page: 8 of 109 Stroman argues that her involvement was less extensive than Bryant’s involvement, she fails to advance any argument that the criminal activity at issue in
the instant case was not “ otherwise extensive.” Accordingly, we conclude that the
district court did not clearly err in applying a three

- level sente ncing enhancement pursuant to § 3B1.1(b). Finally, Stroman argues that she was entitled to a two

- level decrease in her
base offense level based on her “minor” ro le in the offense pursuant to § 3B1.2(b). Specifically, she argues that she is entitled to the reduction because her role in the
tax return fraud scheme relatively min or as compared to codefendant Michael Bryant, whom she characterizes as an “elite crime lord.” Appellant’s Br. at 14. We disagree. First, Stroman fails to satisfy the first prong of the D e Varon test because she nowhere argues that her participation in the scheme was minor “ in relation to the relevant conduct attributed to the defendant in calculating her base offense
level .” See Rodriguez D e Varon , 175 F.3d at 940

– 44. Second, Stroman fails to satisfy the sec ond prong of the De Varon test because she has not satisfied her burden of showing that she was “ less culpable than most other participants in her
relevant conduct.” Id. at 944. Although Stroman’s participation in the scheme may have been less severe than codefendant Bryant’s participation , about which we express no opinion, such a fact would be insufficient to entitle Stroman to a minor

Case: 15-14718 Date Filed: 09/14/2016 Page: 9 of 1010 role reduction. Accordingly, we conclude that the district court did not clearly err in denying Stroman’s request for a minor role reduction pursu ant to § 3B1.2(b). For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED. Case: 15-14718 Date Filed: 09/14/2016 Page: 10 of 10