USA v. Brooke Jones

Filing

Opinion issued by court as to Appellant Brooke Jordan Jones. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-16209

Date Filed: 08/23/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16209
Non-Argument Calendar
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D.C. Docket No. 0:16-cr-60118-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BROOKE JORDAN JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 23, 2017)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Brooke Jordan Jones appeals her 72-month total sentence after pleading
guilty to one count of conspiracy to commit access device fraud in violation of 18
U.S.C. § 1029(b)(2) and one count of aggravated identity theft under 18 U.S.C. §

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1028A(a)(1). On appeal, Jones argues that: (1) the court clearly erred by failing to
grant her a minor role reduction pursuant to U.S.S.G. § 3B1.2(b) because she was
less culpable than her co-conspirators; and (2) her sentence was substantively
unreasonable because it was greater than necessary to satisfy the sentencing factors
in 18 U.S.C. § 3553(a). After careful review, we affirm.
We review a district court’s denial of a role reduction for clear error. United
States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016), cert. denied, 837
F.3d 1182 (2017). Clear error review is deferential, and we will not disturb a
district court’s findings unless we are “left with a definite and firm conviction that
a mistake has been committed.” Id. (quotation omitted). We review the sentence a
district court imposes for “reasonableness,” which “merely asks whether the trial
court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).
First, we are unpersuaded by Jones’s claim that the district court clearly
erred by failing to grant her a minor role reduction. The Sentencing Guidelines
provide for a two-level decrease to a base offense level if a defendant was a minor
participant in the criminal activity. U.S.S.G § 3B1.2(b). A minor participant is
one “who is less culpable than most other participants in the criminal activity, but
whose role could not be described as minimal.” Id. cmt. n.5. Our determination of

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whether to apply a mitigating role adjustment “is heavily dependent upon the facts
of the particular case.” Id. cmt. n.3(C).
We have set forth two principles the district court should consider in
determining whether to grant a role reduction: “first, the defendant’s role in the
relevant conduct for which she has been held accountable at sentencing; and,
second, her role as compared to that of other participants in her relevant conduct.”
United States v. De Varon, 175 F.3d 930, 940 (1999) (en banc). We’ve said,
however, that it may not be dispositive that a defendant had a lesser role than other
participants did in the relevant conduct because it is possible that none of them are
minor or minimal participants. Id. at 944.
Amendment 794, which went into effect on November 1, 2015, added
guidance to § 3B1.2’s Application Note 3(C), providing that:
In determining whether to apply [a mitigating role] adjustment, the
court should consider the following non-exhaustive list of factors:
(i) the degree to which the defendant understood the scope and
structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or
organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the
commission of the criminal activity, including the acts the defendant
performed and the responsibility and discretion the defendant had in
performing those acts;
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(v) the degree to which the defendant stood to benefit from the
criminal activity.
For example, a defendant who does not have a proprietary interest
in the criminal activity and who is simply being paid to perform
certain tasks should be considered for an adjustment under this
guideline.
The fact that a defendant performs an essential or indispensable
role in the criminal activity is not determinative. Such a defendant
may receive an adjustment under this guideline if he or she is
substantially less culpable than the average participant in the criminal
activity.
U.S.S.G. App. C, Amend. 794.
In Cruickshank, we ruled that Amendment 794 was a clarifying amendment
that embraced the approach this Court took in De Varon. Cruickshank, 837 F.3d at
1193-94. We further held that while a district court may lean heavily on one
factor, like drug quantity, in considering a minor role reduction, it is legal error for
the court to rely on that factor as “the only factor to be considered.” Id. at 1195. In
so holding, we stressed the fact-intensive nature of the inquiry, and the sentencing
court’s role in assessing the totality of the circumstances, where no one factor is
“more important than another.” Id. (quotation omitted).
According to the presentence investigation report (“PSI”) in this case, Jones
was involved in a scheme to defraud social security beneficiaries of their monthly
social security checks. Jones acquired personal identification information (“PII”)
on social security beneficiaries through a database she had access to for her work.
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She filtered the PII in the database by age in order to locate individuals who were
receiving social security benefits. She then transmitted this stolen information to a
co-conspirator, known only as “Ten.”

Jones received $3 per set of PII she

transferred to “Ten,” although she began receiving $4 at some point during the
conspiracy. The investigation revealed that the conspirators collectively defrauded
social security beneficiaries of over $400,000, of which Jones received at least
$61,873. In total, Jones sold the PII of at least 5,700 individuals.
On this record, the district court did not clearly err by declining to apply the
minor role reduction to Jones. We recognize that De Varon and Cruickshank
instruct that the district court should not base its determination to refuse a minor
role reduction based solely on the quantity of the illegal substance the participant
transferred -- in De Varon, drugs; here, personal identification information.
Cruickshank, 837 F.3d at 1195. But as the record reveals, the district court did not
base its denial of a role reduction on the amount of PII transferred, but rather on
the fact that Jones “understood the structure of the criminal activity, and she
benefitted tremendously from [it] and wanted to increase her benefits during the
commission of the crime.” These findings directly correlate to the factors the
sentencing notes indicate should be considered, notably that Jones “understood the
scope and structure of the criminal activity” and that “she stood to benefit from the
criminal activity.” § 3B1.2’s Application Note 3(C)(i), (v).
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Although Jones argues that she merely obtained the PII and sold it for a
specific price, it was not clear error for the district court to determine that her
actions indicated she did not merely play a minor role in the conspiracy. The
district court clearly weighed the appropriate considerations -- notably, her
knowledge of the conspiracy and the amount of money she received -- and found
that Jones had not proved she played a minor role in the conspiracy. Accordingly,
the court did not clearly err in refusing to grant the minor role reduction.
We also find no merit to Jones’s claim that her sentence is substantively
unreasonable.

In reviewing the “‘substantive reasonableness of [a] sentence

imposed under an abuse-of-discretion standard,’” we consider the “‘totality of the
circumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall v. United States, 552 U.S.
38, 51 (2007)). The district court must impose a sentence “sufficient, but not
greater than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a).1
The court must consider all of the § 3553(a) factors, but it may give greater weight
to some factors over others -- a decision which is within its sound discretion.
United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). However,

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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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a court can abuse its discretion “when 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. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en
banc) (quotation omitted). A sentence that suffers from one of these symptoms is
not per se unreasonable; rather, we must examine the totality of the circumstances
to determine the sentence’s reasonableness. Pugh, 515 F.3d at 1192. “[W]e will
not second guess the weight (or lack thereof) that the [court] accorded to a given [§
3553(a)] factor . . . as long as the sentence ultimately imposed is reasonable in light
of all the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872
(11th Cir. 2010) (quotation, alteration and emphasis omitted).
Jones has not shown that her total sentence was substantively unreasonable
in light of the record and the § 3553(a) factors. As the record shows, the district
court considered all relevant factors in sentencing Jones, including her criminal
history, risk of re-offending, and her family and community support as mitigating
factors. The district court noted, in considering a downward variance, that it didn’t
think “we need to protect the public from further criminal activity of Mrs. Jones,”
and that “[h]er family and her community support is a mitigating circumstance.”
The court also observed, however, that too low of a sentence for Jones could fail to
deter others from similar criminal conduct in the future. And although the district
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court did not explicitly consider whether a shorter total sentence would enable
Jones to begin repayments earlier, we’ve previously rejected the argument that a
term of imprisonment should be shortened simply to allow a defendant to begin
making restitution payments earlier. See United States v. Crisp, 454 F.3d 1285,
1291 (11th Cir. 2006). In short, there is no indication that the court abused its
discretion by improperly weighed the evidence, placed undue weigh on an
improper factor, or committed a clear error of judgment in balancing the proper
factors. Irey, 612 F.3d at 1189. Accordingly, we affirm.
AFFIRMED.

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