NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 2 2

- 1 4 64

______ UNITED STATES OF AMERICA

v. HORACE HENRY, a/k/a Dale R. Morgan, a/k/a Sadekie White, a/k/a Metro, a/k/a Kevon Haynes, Appellant

______ ______ On Appeal from the United States District Court for the Middle District of Pennsylvania ( D.C. No. 4

- 19

- cr - 00231

- 001) District Judge: Honorable Matthew H. Brann

______ ______ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 13 , 202 3

______ ______ Before: JORDAN , PHIPPS , and ROTH , Circuit Judges

. (Filed: May 3, 2023 )

___________

OPINION *

___________

* This disposition is not an opinion of the full C ourt and p ursuant to I.O.P. 5.7 does not constitute binding precedent.2 PHIPPS, Circuit Judge

. Horace Henry pleaded guilty to conspiracy to commit mail fraud and aggravated identity theft for his role in a scheme to fraudulently order and intercept iPhones

. Exercising jurisdiction over those federal offenses, see 18 U.S.C. § 3231 , t he District Cour t imposed a within

- Guidelines

- range sentence of 144 month s ’ imprisonment

. Through a timely appeal , Henry now challenges two aspects of the calculation of that sentence
. See id. § 3742(a) ; 28 U.S.C. § 1291. First, he disputes the application of the organ izer

- leader enhancement, which resulted in a four

- point increase in his total offense level

. S ee U.S.S.G. § 3B1.1(a) . Second, Henry argues that the loss amount was much less than the $1.3 4 million found by the District Court , such that his offense level should not have been increased by fourteen points

. S ee id. § 2B1.1(b)(1)(H) . Reviewing the District Court’s factual findings for clear error and its application of the Guidelines to those facts for abuse of discretion, see United States v. Thung Va n Huynh , 884 F.3d 160, 165 (3d Cir. 2018), we will affirm the judgment of sentence. A. The Organizer
- Leader Enhancement T he District Court applied the four

- point organizer

- leader enhancement to Henry’s offense level after considering the factors in the Guidelines commentary

. S ee U.S.S.G. § 3B1.1(a)

. Subsequently, t his C ourt construed the organizer

- leader enhancement without reference to the factors in the commentary. See United States v. Adair , 38 F.4th 341 , 349

– 54 (3d Cir. 2022)

. See generally United States v. Nasir , 17 F.4th 459, 469

– 72 (3d Cir. 2021) (en banc)

. Under th e resultin g interpretation, the terms ‘organizer’ and ‘leader’ have different definitions, with ‘leader’ referring to “a person with high

- level directive power or influence over criminal activity.” Adair , 38 F.4th at 354

. But even under th at definition, the factua l record here sustain s the District Court’s application of3 the enhancement. See Thung Van Huynh , 884 F.3d at 165 (explaining that the clear

- error and abuse

- of

- discretion standards merge when the Guidelines provide a “predominantly fact

- driven test” (quoting United States v. Richards , 674 F.3d 215, 223 (3d Cir. 2012)) )

. Several facts before the District Court support the finding that Henry had high

level directive power or influence over the criminal activity. The record contains evidence that Henry set up fraudulent customer accounts to order iPhones. He also picked up coconspirators from New York City and drove them to State College, Pennsylvania, staying overnight at least once . While there, he monitor ed the deliveries of fraudulently ordered i Phones for his coconspirators to retrieve

. Because sometimes his coconspirators would have to submit proof of i d e n tificat i o n to the delivery drivers , He nry provided them with fa lse identifications

. A t least once, he split the group into teams to collect packages

. A lso , h e recruited one of the seven participants , and he instructed that coconspirator to rent the vehicle s used to retrieve the fraudulently ordered iPhones

. In addition to his oversight responsibility for intercepting the fraudulently ordered iPhones, Henry would deliver the retrieved iPhones to an individual in New York for sale abroad

. Henry contests th e conclusion that he was a leader . He argues that he was merely a driver. But it was not clear error for the District Court to fi nd that Henry’s involvement in the conspiracy

– although it involved driving

– went well beyond that function. He nry further contends that he could not be a leader because an other individual set up the fraud scheme before he joined. But that does not foreclose Henry from being a leader of the conspiracy , as there can be multiple leaders or organizers for coordinated criminal activity

. See Adair , 38 F.4th at 352 (recognizing that criminal activity can involve multiple organizers and leaders ). Cons idering the record , the District Court did not abuse its discretion in concluding Henry acted as a leader of a seven - person scheme predicated4 on identity theft and the collection of fraudulently ordered iP hones , which Henry

oversaw . B. Loss Calculation Henr y also disputes the District Court’s calculation of the loss amount for this fraud scheme

. See U.S.S.G. § 2B1.1(b)(1)(H)

. He argues that the District Court should have excluded from its calculation those losses that occurred during a six

- month period when he did not actively participate in the conspiracy

. But the loss amount includes acts within the scope of the jointly undertake n criminal activity in furtherance of the criminal act i vity and reasonably foreseeable in connection with the criminal ac t iv i ty. See id. § 1B1.3(a)(1)(B). And consistent with his role as a leader, Henry did not limit his involvement in the conspiracy ’s scope with respect to the personal information of 390 individuals that was used to order or attempt to ord er over 1,6 0 0 iPhones

. Because Henry had access to that information and used at least some of it, it was not an abuse of discretion to view the losses associated with those iPhones as a reasonably foreseeable consequence of the conspiracy that Henry orchestrated , for purposes of calculati ng the loss amount

. 1 * * * For the foregoing reasons, the judgment of sentence of the District Court will be affirmed

.

1 The District Court sentenced Henry before this Court’s decision in United States v. Banks , 55 F.4th 246 (3d Cir. 2022), and any error by the District Court in not limiting the loss amount to actual losses consistent with that opinion, see id. at 258, is harmless here because the actual losses still exceed the $550,000 threshold for the fourtee n - point increase in Henry’s offense level, see U.S.S.G. § 2B1.1( b )(1) (H).