NOT RECOMMENDED F OR FULL -TEXT PUB L I CATI ON File Na me: 13a0534n.06 No. 12-1304 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintif f-Appellee

, v. CAROL YN RENEE MOO RE, Defendant-

Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN O P IN I O N

BEF ORE: CL AY and COO K, Circuit J udg es; and OL I VER, District J udg e. *

I. INTRODUCTION OL I VER, District J udg e. Def endant- Appellant Moore was convicted of one count of tax fra ud, one count of wire fra ud and one count of conspirac y to com m i t m ail fra ud. She was sentenc ed to 35 months’ imprisonment for eac h count, as well as a one-year period of super v ised rele ase f or the tax fraud c ount and a thre e-year period of supervised relea se for the wire fra ud and mail fra ud counts, to be serve d concur rently

. She appea ls her sentenc e, claiming that the trial court

err ed in calc ulating her Sentencing Guidelines rang e by improperly calc ulating the loss amount and failing to grant her a three -leve l redu ction for acc eptanc e of responsibility

. For the following

rea sons, we AF FI RM.

The Honorable Solomon Oliver , Jr., Chief Judge, Unite d Stat es District Cour t for * the Northern District of O hio, sitt ing by designation.II. BACKG ROUND

Def endant- Appellant Moore was char g ed with 65 counts of tax fra ud, 61 count s o f wire fra ud, and one count of conspira cy t o co m mit mail fra ud. Moore enter ed into a plea ag ree ment reg arding the tax and wire fra ud charg es, pleading guilty to one count of tax fra ud and one count of wire fraud. Howeve r, she e lected to g o to trial on the mail fra ud conspirac y char g e and was found guilty . At Moore’ s reque st, she rec eived a n ag greg ate se ntence for a ll three c ounts. Moore’ s mail fra

ud conviction resulted from a scheme wher e her co-c onspirators submitt ed fra udulent claims to her insurer for home health car e service s they had provided to Moore, who had been injured in a car acc ident. Moore prepa red fra udulent tax retu rn s for her co-c onspirators in order to avoid their pay

ing tax es on the money

rec eived f

rom the insuranc e compa ny . In exchang e for pleading guilty to tax fr au d and wire fra ud, the g overnme nt, inter alia,

rec ommended that Moore be g rante d a two-leve l reduc tion for acc eptanc e of responsibility , pursuant to § 3E1.1(a) , and an additional one-le vel reduc tion pursuant to § 3E1.1(b). The ag ree ment provides: the U.S. Attorney ag ree s that the defe ndant has assisted the au t h o ri ties, within the meaning of USSG § 3E1.1(b), in the prosec ution of the defe ndant’s own misconduct by timely notifying authoriti es o f h er intent to plead guilty , there by permitting the g overnme nt to avoid prepa ri n g fo r a trial on the tax fra ud and wire fra

ud count ag ainst defe ndant, and permitting the g overnme nt and the court to allocate t h eir resour ces eff

icien t l y . T h e U.S. Attorney there fore moves that the defe ndant be g rante d a third level reduc tion for acc eptanc e of responsibility as to the tax fra ud and wire f raud c harg es ag ainst her. (R. 79, Plea Ag ree ment, PI D #243-44.) The plea ag ree ment also contemplate d the conse quence s the mail fra ud char g e mig ht have

on Moore’ s sentenc e. The g overnme nt rese rved the rig ht to rec ommend ag ainst g iving Moore cre dit for acc eptanc e of responsibility if it “lea rn[ed] of information inconsistent with the adjustment,” ( id

. 2at PI D #244,) and two provisions cautioned Moore ag ainst making statement s at trial that might

sug g est a failure to acc ept responsibility

. Id

. The go v er n ment does not invoke these provisions; Moore did not testify

at her trial. Howeve r, Moore also stipulated that she “under stands that a conviction on the [m ail fra ud] char g e . . . may result in a re- calc ulation of defe ndant’s guidelines score s for the [t ax fra ud and wire fra ud counts] and thereby

g ive rise to a higher a g g reg ate se ntence .” ( Id . at PI D #242.) This ap p ea l conce rns two issues that arose at Moore’ s sentenc ing. First, the district court found that the loss ca

used by Moore’ s mail fraud e x cee ded $30,000, thus incre asingher guideline calc ulation by six offe nse levels. Moore objected that t h e go v er n ment had not shown by a preponde ranc e of the evidenc e that the loss amount e x cee ded $30,000. Second, althoug h the court

awa rde d M o o re a two-leve l reduc tion for acceptance of responsibili ty , the court declined to g rant Moore an additional one-le vel reduc tion for timely notifying the g overnme nt of her intent to plead guilty ; Moore ar gu ed that her plea ag ree ment reg arding the tax and wire fra ud counts bound the g overnme nt to move for the one-le vel reduc tion at sentenc ing. On appea l, she argues that the court

err ed both in its calc ulation of the amount of lo s s an d i n allowing the g overnme nt to alleg edly brea ch the plea

agree ment by

decliningto move for a

one-le vel re duction. III. DISCUSS ION A. Calculation of

Loss Am ount Und er U SSG § 2B1.1(b)(1)(D ) This court revie ws for clea r err or a district court’s loss calc ul at i o n u nder the sentenc ing guidelines. United States v. Sosebee , 419 F.3d 451, 455 (6th Cir. 2005). In light of “the difficulties often associate d with attempting to calc ulate loss in a fra ud case , the district court ‘nee d only make

a re asonable estimate’ of the l oss using a preponde ranc e of the evidenc e standa rd.” United States

v. W endlandt , __ F.3d __, 2013 WL 1694444, at *4 (6th Cir. 2013) (quoting US S G § 2B1.1 cmt. 3n.3(C) and citing United States v. Jones , 641 F.3d 706, 712 (6th Cir. 2011)). Moore must show that

the court’s finding reg arding the amount of l oss “wa s n o t only inexact but outside the uni verse of

acc eptable computations.” Un i t ed States v. Martinez , 588 F.3d 301, 326 (6th Cir. 2009) (citation omitted). Both parties acknow ledg e that the insurance company paid the co-c onspirators $63,299.10. At trial, one of Mo o re ’s co -c o nspirators testified that Moore told her what to write on the claim forms she submitt ed to the insurer. The same c oconspirator testified that she g ave Moor e most of the money the coconspira

tor rec eived from the insurer. The g overnme nt also provided evidenc e that the co-c onspirators provided far less car e to Moore than they re p re s en t ed on their claim forms. Howeve r, Moore provided e vidence that she had r ece ived at lea st some car e. The prese ntence investigation repor t stated that the total amount of loss was $63,299.10 and

rec ommended a six -leve l incre ase, pursuant to USSG § 2B1.1( b)(1) (D), beca use the loss was g reater than $30,000, but did not exceed $70,000. Howeve r, bec au s e there was evidenc e that Moore had

rec eived someleg itimate car e, Moore argued that the amount of l oss was necessa rily less than t he total amount the insurer paid her co-c onspirators. Acc ording ly , Moore objected to that calc ulation, arguing that the g overnme nt ha d not shown by a preponde ranc e of the evidenc e that the amount of loss exceede d $30,000. Nonethele ss, the court found that the loss was g reater than $30,000, but did not exceed $70,000. It also stated that “[t] he amount of loss that’s been established by the insurance company is the full am o u n t t h ey paid” and incre ased Moore’ s offe nse level by six levels beca use the amount of loss exceede d $30,000. (R. 142, SentencingTr., PI D #1138). The district court did not clea rly err in finding that the amount o f l o s s was more than $30,000, which merited a six -leve l incre ase. The rec ord does contain some evidenc e that the amount of loss was somewhat less than the full $63,299.10 Moore’ s co -c o n s p irators rec eived. Howeve r, 4there was ample evidenc e to suppo rt the district court’s finding that the amount of loss exceede d

$30,000. There is evidenc e in the rec ord that, on some occa sions, Moore’ s co-c onspirators wer e not at Moo re ’s home on the day s they claimed to have provided car e. For example, the g overnme nt introduced evidenc e showing that two co-c onspirators had claimed to have provided car e for Moore

on day s they had been at their regular jobs–one co-c onspirator would have had to have worke d 22.5 hours that day , while the other would have had to ha ve worke d 26 hours in the same day

. Fur ther,

some of the co-c onspirators testified that on day s they did actua lly go t o Moore’ s home, they provided care for no more than a t h i rd of t he hours they claimed; one co-c onspirator testified that

s h e neve r worke d the 12 hours a day for which the insurer had paid her. There was also evidence that Moore took a substantial amount of the money that the insurer paid her co-c onspirators for herse lf. Additionally , the insurer’ s private investigators testified that, during their inv es t i gati on, they never once observe d one of the co-c onspirators enter Moore’ s house. In light of such evidenc e that the co-c onspirators (at least) signific antly inflated the hours of car e they provided and that the

co-c onspirators g ave Moore a substantial portion of the money they rec eived, the court’s finding that the amount of loss exceede d $30,000 was well within the universe of acc eptable computations. The court did not commit clear err or. B. Acce ptance of Responsi bili ty Under U.S.S.G. § 3E1.1(b) Moore arg

ues that her p lea ag ree ment require d the g overnme nt to move for a USSG § 3E1.1(b) reduc tion and that the district court err ed when, afte r the g overnme nt ref used to so move, it de nied her the reduc tion. The g overnme nt argues that Moore’ s mail f raud conviction relieve d it of any such obliga

tion. The g overnme nt also argues that the fac t t h at M o o re v i olated her bond provides an a lternative ground for aff irming the district court.

5Section 3E1.1(b) of the Sentencing Guidelines allows a district court, pursuant to a motion

by the g overnme nt, to g rant a defe ndant a one-le vel re duction for timely notifying the g overnme nt of his intention to plead guilty

. A defe ndant is only elig ible for a reduc tion under § 3E1.1(b) if he “cle arly demonstrates acc eptance of responsibility for his offe nse” pursuant to § 3E1.1(a)

. Gene rally , the g overnme nt has “b road discretion” in whether or not to move for a § 3E1.1(b) reduc tion. United States v. Smith , 429 F.3d 620, 629 ( 6th Cir. 2005). 1. The Ple a Agre em ent P l ea agr eeme nts “ar e essentially contra cts,” Puck ett v. United States , 556 U.S. 129, 137 (2009), and are interpre ted and enfor ced acc ording to “tra diti o n al principles of contra ct law.” United States v. Robison , 924 F.2d 612, 613 (6th Cir. 1991). The construction of a plea ag ree ment is a question of law, subject to de novo revie w. United States v. Monciv ais , 492 F.3d 652, 662 (6th Cir. 2007). Howeve r, if the terms of an ag ree ment are ambiguous, their meaning become s a question of fact, and the sentenc ing court’s findings are reviewe d for clear err or. United States v. Ricks , 398 F. App’x 135, 137 (6th Cir. 2010) (citing United States v. Lukse , 286 F.3d 906, 909 (6th Cir. 2002)). In exchang e for pleading guilty to tax fra ud and wire fra

ud, the g overnme nt, int er alia, ag ree d to rec ommend that Moore be g rante d a two-leve l reduc tion for acc eptanc e of responsibility , pursuant to § 3E1.1(a) , and an additional one-le vel reduc tion pursuant to § 3E1.1(b). Howeve r, the ag ree ment provided that a conviction on the mail fra ud char ge co u l d result in a rec alculation of Moore’ s guidelines score s that would result in a highe r ag gre gat e s en tence
. The district court p ro v i d ed Moore with an opportunity to be sentenc ed separ ately for her tax and wire frau d convictions afte r enter ing a plea of guilty , which would have allowed her to rec eive the extra point

6for a cce ptance of re sponsibili ty under § 3E1.1(b). She opted instead to pr ocee d with an ag g reg ate

sentenc e on all thre e counts. In imposing an ag g reg ate sentenc e that encompa ssed all three counts, the district court found that the par

ties did not intend to require the Unit ed States to move for a third point for a cce ptance of responsibility at sentenc ing if Def endant did not preva il at trial. The plea ag ree ment is ambiguous

on this question, as the rec alculation proviso does not direc tly addre ss the eff ect the mail fr au d conviction would have on the g overnme nt’s ag ree ment to move for § 3E1.1(b) cre dit. Howeve r, the extrinsi c evidenc e indicates that the g overnme nt’s obligation to move for a third-level reduc tion was conting ent on Moore’ s acquittal on the mail fra ud char g e. The following colloquy betwee n the court and Moore’ s counsel at sentenc ing provides insight into the parties ’ i n t en t wh en they draf ted the ag ree ment: THE C OURT: My understanding was that y ou wer en’t presuming her conviction. You wer e pre suming he r ac quittal. MR. J ACOBS: That’s true

. (R. 142, PI D #1143.) The court later stated, “that i s an i s s u e that was cover ed on [a] number of differ ent s ets of circumstance s as the c ase ha d prog resse d. Had there been an acquittal, the three

level reduc tion

. . . would have been to her favor

. That was the calc ulation that she made

. . . .” ( Id

. at PI D #1145.) Fur thermore , the district court’s finding that the parties did not intend that the Gover nment would be require d to move for acc eptanc e of responsibility if Moore was convicted on the mail fra ud

co u n t is consistent with this circ uit’s holding that “a defe ndant must acc ept responsibility fo r al l counts befor e he is entitled to a reduc tion in s en t en ce for acc eptanc e of responsibility .” United States v. C

hambers , 195 F.3d 274, 278 (6th Cir. 1999). In order to rec eive a third-level reduction 7under § 3E1.1(b), a defe ndant must qualify for a two-leve l re du cti on under § 3E1.1(a)

. Be cause

Moore acce pted responsibil ity for only two of t he three counts in her aggreg ate sentence , she was not entitled to a § 3E1.1(b) cre dit. The fac t that the g overnme nt chose not to oppose a t wo-leve l reduc tion under § 3E1.1(a ) in this case doe s not chang e the r esult. Given this evidenc e, the trial court’s fac tual finding that the parties intended that the g overnme nt’s obligation to move for a third-level redu ct i o n , under the plea ag ree ment, to be conting ent on Moore’ s acquittal for mail fraud doe s not leave this pane l “with a def inite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948). 2. Moore ’s Bond Violation Be cause the district court did not err in its co n s t ru ct i o n of the plea agree ment, we do not

rea ch the g overnme nt’s argument that Moore’ s bond violation provides an independe nt ground for aff irming the district court. United States v. Richardson , 510 F.3d 622, 628 ( 6th Cir. 2007). IV. CONCLUSION We affir m the district court’s sente nce.

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