[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 12488 Non

- Argument Calendar

________________________ D.C. Docket No. 0:12

- cr - 60143

- JIC

- 3

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus SONYINI CLAY, Defendant

- Appellant.

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

________________________ (April 14, 2014) Before CARNES , Chief Judge, TJOFLAT and JORDAN, Circuit Judges. PER CURIAM:

Case: 13-12488 Date Filed: 04/14/2014 Page: 1 of 152 Sonyini Clay appeals her 121

- month sentence for conspiracy to defraud the United States government by filing false claims , in violation of 18 U.S.C. § 286 , and aggravated identity theft , in violation of 18 U.S.C. § 1028A(a)(1)

. Clay now contends that her sentence was both procedurally and substantively unreasonable.
I. Factual and Procedural History From December 2010 to June 2012 , Clay and her two co defendants, Chante Mozley and Alci Bonannee, filed around 2,000 fraudulent income tax returns using stolen identities

. They filed the returns using Mozley’s Electronic Filing Identification Number 1 and requested th at the tax refunds be deposited into bank accounts they controlled. In total, Clay and her co defendants sought about $11
million in refunds . T he IRS ultimately paid out over $4 million of the requested
funds , a substantial portion of which was never recovered

. In August 2012 a federal grand jury returned a 43

- count indictment charging Clay and her codefendants with , among other things, conspiracy to defraud the United States by filing false income tax returns, in violation of 18 U.S.C. § 286 (Count 1); filing an d obtaining payments for false income tax retur ns, in violation of 18 U.S.C. § 287 (Counts 29

– 33); wire fraud, in vi olation of 18 U.S.C. § 1343 (Counts 34

– 38); and, for Clay only, aggravated identity theft, in violation of 18

1 An Electronic Filing Identification Number is a code that the IRS gives to tax preparers to enable them to electronically file tax returns. See IRS Webpage “FAQs About Electronic Filing ID Numbers,” http://www.irs.gov/Tax

- Professionals/e

- File

- Providers

- &

- Partners/FAQs

About

- Electronic

- Filing

- ID

- Numbers

- (EFIN) (Dec. 19, 2013).

Case: 13-12488 Date Filed: 04/14/2014 Page: 2 of 153 U.S.C. § 1028A(a)(1), (2) (Cou nts 39

– 43)

. Clay initially plea ded not guilty to these charges, but she changed course on the first day of trial and

–– without a plea agreement

–– pleaded guilty to Counts 1 and 40. The district court dismissed the remaining counts against her. On Count 1, the conspiracy charge, the presentence investigation report (PSR) calculated a base offense level of six. See United States Sentencing Guidelines § 2B1.1(a)(2) (Nov. 2012). The PSR increased that offense level by 20 because the intended loss amount for the offense was between $7 million and $20 million, id. § 2B1.1(b)(1)(K), and it added an additional 6 levels because the offense involved 250 or more victims, id. § 2B1.1(b)(2)(C). After subtracting two levels for acceptance of responsibility, id. § 3E1.1(a) , the PSR calculated a total offense level of 30. That offense level, coupled with Clay’s criminal history category of I, yielded a guidelines range of 97 to 120 months imprisonment on the conspiracy charge. The aggravated identity theft charge carried a mandatory consecutive sentence of 24 months. 18 U.S.C. § 1028A (a)(1) . Neither party objected to the PSR. Although she failed to object to the PSR, Clay did file a motion for a “downward departure,” 2 in which she argued that she should not be held

2 Although Clay designated the motion as one for a downward departure, its content indicates that she was actually seeking a downward variance. The difference between the two is that a downward departure implicates the calculation of the guidelines range while a downward

Case: 13-12488 Date Filed: 04/14/2014 Page: 3 of 154 responsible for the full intended loss amount. In support of that argument , Clay pointed to the disparity between intended loss and actual loss and argued that she played a smaller ro le in the fraudulent scheme than her codefendants. She also asked the court to consider that she has a child with special needs . The district
court denied Clay’s motion and sentenced her to, among other things, 97 months imprisonment on Coun t 1 and a con secutive 24

- month term on Count 40. Clay now appeals her sentence.
II. Procedural Reasonableness Clay first contends that her sentence was procedurally unreasonable because the district court (1) failed to adequately explain her sentence as required by 18 U.S.C. § 355 3(c) (1) ; (2 ) imposed a n unwarranted 6

- level enhancement for more than 250 victims under U.S.S.G. § 2B1.1(b)(2)(C) ; and (3 ) erroneously i mposed a
20

- level enhancement under § 2B1.1(b)(1)(K) for a loss amount greater than $7
million but less than $20 million.
A. Explanation for the Sentence A district court is required to “state in open court the reasons for its imposition of the particular sentence,” and , if the sentence is a guidelines sentence, its “reason for imposing a sentence at a particular point within the [advisory

variance invokes the district court’s discretion to impose a sentence below the calculated guidelines range based on the factors set forth in 18 U.S.C. § 3553(a)

. See United States v. Amedeo , 487 F.3d 823, 830 (11th Cir. 2007).

Case: 13-12488 Date Filed: 04/14/2014 Page: 4 of 155 guidelines] range.” 18 U.S.C. § 3553(c) (1)

. If the court fails to adequately explain its chosen sentence , it has commi t t ed procedural error. Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007) (instructing appellate courts to ensure that “the district court committed no significant procedural error, such as . . . failing to adequately explain the chosen sentence”). We review de novo a district court’ s compliance with § 3553(c)(1), even if the defendant did not raise that objection in the district court. United States v. Bonilla , 463 F.3d 1176, 1181 (11th Cir. 2006). Although the law obliges district courts to state the reasons for choosing a particular sentence, “a lengthy discussion is not required in the typical case.” United States v. Flores , 572 F.3d 1254, 1270 (11th Cir. 2009). All that is required is that the sentencing judge “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States , 551 U.S. 338, 356 , 127 S.Ct. 2456, 2468 (2007). To meet that standard, the sentencing court need not discuss or explicitly state on the record that i t has considered each § 3553(a) factor as long as it acknowledges that it generally considered those factors and the defendant’s arguments. See United States v. Scott , 426 F.3d 1324, 1329

– 30 (11th Cir. 2005) (“[T]he district court explicitly acknowledged that it had considered [the defendant’s] arguments at sentencing and that it had considered the factors set forth in § 3553(a)

. This statement a lone is sufficient in post

- Booker sentences.” );

Case: 13-12488 Date Filed: 04/14/2014 Page: 5 of 156 see also Flores , 572 F.3d at 1271 (holding a sentence to be procedurally reasonable where the district court “explicitly stated that it considered the § 3553(a) factors ”). The district court ’s explanation in this case was adequate. The court stated on the record that it considered: (1) the parties’ statements; (2) the PSR , which contained the advisory guidelines sentencing options ; (3) each of the 18 U.S.C. § 3553(a) sentencing factors; and (4) Clay’s motion for a downward departure or variance . The court’s explanation was thus sufficient to demonstrate that it had considered the parties’ arguments and had a reasoned basis for exercising its own legal decision

- making authority. See Rita , 5 51 U.S. at 356, 127 S.Ct. at 2468 ; Flores , 572 F.3d at 1270

– 71. B. Enhancement s for Multiple Victims and Loss Amount Clay contends that the district court erred by applying a 6

- level enhancement for committing an offense that involved 250 or more victim s and by applying a 20

- level enhancement for causing an intended loss between $7 million and $20
million

. See U.S.S.G. § 2B1.1(b)(2)(C) , (b)(1)(K)

. She asserts that she cannot be held responsible for the conduct of her co

- conspirators because the district court failed to make any of the “particularized findings” t hat she believes are required and because the PSR did not, in her view, identify a law enforcement finding that she victimized that many people. Because she did not raise those issues bef ore the Case: 13-12488 Date Filed: 04/14/2014 Page: 6 of 157 district court, we review the court’s decision of them only for plain error. United States v. Hoffman , 710 F.3d 1228, 1231

– 32 (11th Cir. 2013). Under the sentencing guidelines, a defendant convicted of conspiracy is responsible for “all reasona bly foreseeable acts and omissions of [her co

conspirators] in furtherance of the jointly undertaken criminal activity that occurred during the commission of the offense,” in preparation for the offense, or in trying to escape detection for that offense. U.S.S.G. § 1B1.3(a)(1) (B) . In other words, a defendant like Clay is responsible for the conduct of her co

- conspirators only if that conduct was both (1) in furtherance of the jointly undertaken criminal activity and (2) reasonably foreseeable in connection with that criminal activity. Id. , cmt. n.2 . We have also held that, “to determine a defendant’s liability for the acts of others, the district court must first make individualized findings concerning the scope of criminal activity undertaken by a particular defendant.” United States
v. Hunter , 323 F.3d 1314, 13 19 (11th Cir. 2003) (quotation marks omitted) . Only then should the court consider reasonable foreseeability and whether the conduct was in furtherance of the conspiracy. See U.S.S.G. § 1B1.3, cmt. n.2; see also United States v. Gallo , 195 F.3d 1278, 128 1 (11th Cir. 1999) (noting that “both § 1B1.3(a)(1)(B) and its c ommentary unambiguously direct that sentence enhancements for co

- conspirator conduct will be limited to those acts which are reasonably foreseeable”).

Case: 13-12488 Date Filed: 04/14/2014 Page: 7 of 158 Relying on the application notes to the sentencing guidelines and our Hunter decision, Clay argues th at the district court committed reversible error by failing to make particularized findings about the scope of her involvement in the conspiracy. She casts her challenge as a “procedural” one, insisting that the court was required to make particularized f indings, but she ultimately seeks to retract fact s she ad mitted (by failing to object to ) at sentencing. Th i s is a crucial distinction between her situation and the authority she cites in which we have required particularized findings. In Hunter , for exa mple, the government and the defendants both filed objections to the PSR regarding the extent to which the defendants were responsible for the actions of other members of the conspiracy. 323 F.3d at 131 7 . And in Gallo , which Clay does not cite, the defen dant argued at sentencing that a “reasonable foreseeability” finding was required to hold her responsible for her co

- conspirators’ possession of firearms. 195 F.3d at 1280. We held that the district court’s failure to make particularized findings in thos e cases required remanding for resentencing. Id. at 1284; Hunter , 323 F.3d at 1323. But because the “holdings of a prior decision can reach only as far as the facts and circumstances presented to the Court in the case which produced that decision,” Unite d States v. Aguillard , 217 F.3d 1319, 1321 (11th Cir. 2000) (quotation marks omitted) , Hunter and Gallo do not control this case. 3

3 We also note that the particularized finding “requirement” is not as absolute as Clay Case: 13-12488 Date Filed: 04/14/2014 Page: 8 of 159 In this case, there were no objections to the PSR, no trial, and no real record on which to base the findings Clay now cla ims are required. As the prosecutor noted, it was “[h]ard to get good information in this case because not a lot of people [we]re talking.” But the information the court did have justified its application of those two enhancements. The district court co uld have permissibly relied on any of the following pieces of information: (1) undisputed statements in the PSR that “the offense involved 250 or more victims” a nd that Clay herself was “responsible for an intended tax loss bet ween $7,000,000 and $20,000,000; ” (2)

a nother undisputed statement in the PSR asserting that Clay and her co

conspirators filed a pproximately 1,175 fraudulent tax returns in 2 010 and 649 fraudulent returns in 2011; 4 (3) Clay’s counsel’s admission at sentencing that she had pe rsonally filed about “300 or so” of the roughly 2,000 returns ; and (4) counsel’s statement, when asked whether he objected to the district court’s loss calculation, that he “had to live with” that calculation because the PSR was “using the intended loss.”

would have us believe. We have excused a sentencing court’s failure to make such findings where the evidence presented at trial supported the court’s imposition of an enhancement based on the acts of others. See United States v . Petrie , 302 F.3d 1280, 1290 (11th Cir. 2002) (“[A] sentencing court’s failure to make individualized findings regarding the scope of the defendant’s activity is not grounds for vacating a sentence if the record supports the court’s determination with res pect to the offense conduct, including the imputation of others’ unlawful acts to the defendant.”). 4 These approximate figures were calculated based on the PSR’s statement that 97% of the 1,211 returns the conspirators filed for tax year 2010 had “fraud ulent indicators” and that at least 65% of the 998 returns they filed for tax year 2011 had such indicators.

Case: 13-12488 Date Filed: 04/14/2014 Page: 9 of 1510 Because Clay neglected to object to t he statement s in the PSR, she admitted them as fact for sentencing purposes. See United States v. Wade , 458 F.3d 1273, 1277 (11th Cir. 2006) . W e have held that a defendant’s “failure to object to conclusory statements in the [PSR] renders those statements undisputed and permits the sentencing court to rely upon them without error even if there is an absence of supporting evidence .” United States v. Aguilar

- Ibarra , 740 F.3d 587, 592 (11th Cir. 2014 ) (quotation marks omitted) (emphasis added). Th us, the district court here was entitled to rely on the undisputed statement s in the PSR that Clay was responsible for an intended loss between $7 million and $20 million and that her offense involved more than 250 victims . Ho wever conclusory those
statement s were , the district court was not required to make any additional factual findings when those undisputed statements were before it , and the court did not plainly err in applying enhancements on the basi s of them

. For all of these reasons, we conclude that the district court did not procedurally err in sentencing Clay. 5

5 Clay also argues that our decision in United States v. Jones , 899 F.2d 1097 (11th Cir. 1990) , abrogated on other grounds by United States v. Morrill , 984 F.3d 1136 (11th Cir. 1993) , requires resentencing in this case. In Jones we held that a district court should , after imposing a sentence, “ elicit fully articulated objections

. . . to the court’s ultimate findings of fact and conclusions of law

. ” Id. at 1102. Clay contends that the district court did not comply with Jones because the court, after asking whether there were any objections to the sentence, “moved forward to advise the defendant regarding the right to appeal” without giving the parties the opportunity to respond. The government concedes that after asking for objections, the district court moved on “[w]ithout pausing

. ” However, we have not always vacated a sentence where a district court has not complied with Jones

. See United States v. Cruz , 946 F.2d 122, 124 n.1

Case: 13-12488 Date Filed: 04/14/2014 Page: 10 of 1511 I I I. Substantive Reasonableness Clay also contends that her sentence is substantively un reasonable under the totality of the circumstances. United States v. Turner , 626 F.3d 566, 573 (11th Cir. 2012). A district court must impose a sentence that is “sufficient, but not greater than necessary,” to “reflect the seriousness of the offense,” “promote respe ct for the law,” “provide just punishment for the offense,” “afford adequ ate deterrence,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational . . . training ” or correctional treatment. 18 U.S .C. § 3553(a)(2) . Section 3553(a) contains a number of additional factors that a court must take into account when imposing a sentence. 6 The district court must consider all of the § 3553(a) factors, but it may attach more weight to some factors than ot hers

. S ee United States v. Shaw , 560 F.3d 1230, 1237 (11th Cir. 2009) ; United States v. Williams , 526 F.3d 1312, 1322 (11th Cir. 2008) (noting that the weight given to any one of these factors is “committed to the sound discretion of

(11th Cir. 1991) (excusing the district court’s violation of Jones where the record was nonetheless sufficient to enable appellate review). More importantly, the record shows that Clay had an opportunity to object an d raise additional issues when the court paused a few statements after it had elicited objections to the sentence. At that time, Clay’s counsel requested that Clay be permitted to self

- surrender to custody at a later date. That request indicates that cou nsel did have the opportunity to object to the court’s sentence after it was announced, even if the opportunity did not come immediately after the court explicitly elicited objections. 6 Those factors include: (1) the nature and circumstances of the of fense, (2) the defendant’s history and characteristics, (3) the kinds of sentences available, (4) the applicable sentencing guidelines range, (5) pertinent policy statements of the Sentencing Commission, (5) the need to provide restitution to any victims, and (6) the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(1), (3)

– (7)

.

Case: 13-12488 Date Filed: 04/14/2014 Page: 11 of 1512 the district court ”) (quotation marks omitted) . A district court errs if it “ (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Ir ey , 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). Clay argues that her 121

- month sentence is substan tively unreasonable because the district court “appeared to rely solely on the guideline range” and the need for deterrence while ignoring relevant factors such as h er history, characteristics , and the role she played in the conspiracy . Clay also points out that

s he received a sentence three times longer than that of c o - conspirator Chante Mozley , creating an unwarranted sentencing disparity

. We note at the o utset that the district court sentenced Clay at the bottom of her guidelines range. Her advisory guidelines range on the conspiracy charge was 97 to 120 months, and the aggravated identity theft charge carried a mandatory consecutive term of two years imprisonment. See 18 U.S.C. § 1028A. Thus , Clay’s 121

- mont h sentence represents 97 months for conspiracy (the bottom of the guidelines range) and an additional 24 months for identity theft. Although we do not automatically presume the reasonableness of a sentence falling within the guidelines range, “ we ordinarily expect such a sentence to be reasonable. ” United
States v. Hunt , 526 F.3d 739, 746 (11th Cir. 2008) (quotation marks and ellipsis

Case: 13-12488 Date Filed: 04/14/2014 Page: 12 of 1513 omitted). Moreover, we will not reweigh the relevant § 3553(a) factors and will
not “ remand for re

- sentencing unl ess the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence outside the range of reasonable sentences. ” United States v. Langston , 590 F.3d 1226, 1237 (11th Cir. 2009). Th e district court did not commit such an error in this case

. Clay and her codefendants orchestrated a very serious and harmful scheme. They filed around 2,000 fraudulent tax returns, causing an actual loss of about $4 million and an intended loss of $11 million. The sentence the court imposed
reflects the seriousness of this offense and w ill serve as a deterrent to others. See 18 U.S.C. § 3553(a)(2)(A)

– (B). It was within the advisory guidelines range. See id. § 3553(a)(4). The district court considered other factors as well. The court stated on the record that it had considered all of the § 3553(a) factors, and , by entertaining Clay’s motion for a downward variance, it necessarily considered that (1) the actual loss amount was less than the intended loss amount, (2) Clay received very little money from the scheme, (3) her role w as “so minimal compared to the other two defendants,” and (4) she has a special needs child for whom she care s . All of these considerations are relevant to the § 3553(a)(1) sentencing factor

–– “the nature and circumstances of the offense and history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1) . T he district court permissibly exercised its discretion to attach more weight to the aggravating

Case: 13-12488 Date Filed: 04/14/2014 Page: 13 of 1514 factors than to any of the potential mitigating factors Clay relies on now. Shaw , 560 F.3d at 1237 (11th Cir. 2009) (“The district court . . . is permitted to attach ‘great weight’ to one factor over others.” ) (quoting Gall , 552 U.S. at 57, 128 S.Ct.
at 600 ). Clay’s claim of an unwarranted s entencing disparity is also meritless. She notes that her codefendant Chante Mozley , the woman who provided the Electronic Filing Identification Number used in the scheme, was sentenced to only 42 months imprisonment. While that is nearly three times less than Clay’s sentence, the comparison i s inapt because the two defendants are not similarly situated

. See United States v. Spoerke , 568 F.3d 1236, 1252 (11th Cir. 2009) (rejecting claim of sentencing dis parity because the defendants “[we] re not similarly situated”) ; see also 18 U.S.C. § 3553(a)(6 ) (instructing sentencing courts about “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”) (emphasis added)

. Unlike Clay, Mozley pleaded guilty to only one co unt and did so thirteen days in advance of trial pursuant to a plea agreement with the government. She also cooperated with the government and was granted a reduction to her sentence under U.S.S.G. § 5K1.1 as a result. Clay on the other hand pleaded guil ty to two counts on the day that trial began and did so without a plea agreement or any reduction for cooperation. “A well

- founded claim of disparity . . . assumes that apples are being

Case: 13-12488 Date Filed: 04/14/2014 Page: 14 of 1515 compared to apples,” and that is not the case for Clay and Mozley. U nited States v. Docampo , 573 F.3d 1091, 1101 (11th Cir. 2009). It is telling that Clay does not compare her sentence to that of codefendant Alci Bonannee, who was sentenced to a total of 317 months following trial. 7 Clay’s sentence was both procedurally and substantively reasonable and the district court’s sentence is AFFIRMED

.

7 In its brief, the government claims that Bonannee’s sentence was only 240 months, but her criminal judgment sets forth a total prison term of 317 months. The difference does not matter for present purposes.

Case: 13-12488 Date Filed: 04/14/2014 Page: 15 of 15