US v. Junior Merilia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00073-HEH-1 Copies to all parties and the district court/agency. [999762058].. [15-4398, 15-4399]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4398

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUNIOR JEAN MERILIA,
Defendant - Appellant.

No. 15-4399

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUNIOR JEAN MERILIA,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:14-cr-00073-HEH-1; 3:14-cr-00139-HEH-3)

Submitted:

January 29, 2016

Decided:

Before GREGORY, SHEDD, and DIAZ, Circuit Judges.

February 25, 2016

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Affirmed by unpublished per curiam opinion.

John Cadwallader Jones, Jr., JONES LAW OFFICE, Providence Forge,
Virginia, for Appellant.
Dana J. Boente, United States
Attorney, Michael C. Moore, Assistant United States Attorney,
Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In these consolidated appeals, Junior Jean Merilia appeals
his aggregate 133-month sentence imposed following his guilty
pleas to conspiracy to commit mail and wire fraud, in violation
of

18 U.S.C.

§

1349

(2012),

aggravated

identity

theft,

in

violation of 18 U.S.C. §§ 2, 1028A(a)(1) (2012), and obstruction
of

official

proceedings,

§§ 2, 1512(c)(2) (2012).

in

violation

of

18

U.S.C.

Finding no error, we affirm.
I.

Merilia first challenges the district court’s intended loss
calculation.

We review a district court’s factual determination

of the amount of loss for clear error.

United States v. Jones,

716 F.3d 851, 859-60 (4th Cir. 2013).
When calculating the Sentencing Guidelines range applicable
to a fraud offense, the Government is required to establish “the
amount of loss by a preponderance of the evidence.”

United

States v. Catone, 769 F.3d 866, 876 (4th Cir. 2014).

“[T]he

[district] court ‘need only make a reasonable estimate of the
loss.’”

United States v. Cloud, 680 F.3d 396, 409 (4th Cir.

2012) (quoting U.S. Sentencing Guidelines Manual § 2B1.1 cmt.
n.3(C) (2014)). 1

Generally, “loss is the greater of actual loss

1

Guidelines commentary “that interprets or explains a
guideline is authoritative unless it violates the Constitution
(Continued)
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or intended loss.”

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USSG § 2B1.1 cmt. n.3(A); see USSG § 2B1.1

cmt. n.3(A)(ii) (“‘Intended loss’ (I) means the pecuniary harm
that was intended to result from the offense; and (II) includes
intended

pecuniary

harm

that

would

have

been

impossible

or

unlikely to occur . . . .”).
We conclude that the district court did not clearly err in
calculating the intended loss.

The court relied on evidence law

enforcement agents recovered from a storage unit.

The evidence

included 747 index cards containing stolen personal information,
along

with

records

of

fraudulent

tax

returns

and

of

the

conspiracy, prepaid debit cards, and online printouts of job
applications containing more personal information.

The district

court multiplied 747, the number of cards, by the average amount
sought by the conspirators from the fraudulent tax returns.
conclude

that

this

was

a

intended loss in this case.

reasonable

method

of

We

estimating

See United States v. Miller, 316

F.3d, 495, 504 (4th Cir. 2003) (relying on amounts billed to
Medicaid and Medicare to determine intended loss). 2

or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.”
Stinson v. United
States, 508 U.S. 36, 38 (1993).
2

To the extent that Merilia argues the district court erred
by failing to apply the 2015 amendments to the Sentencing
Guidelines instead of the 2014 Guidelines Manual in effect at
(Continued)
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II.
Next, Merilia contends that the district court erred in
applying the sophisticated means enhancement.

We also review

the application of this enhancement for clear error.

United

States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).
The
defendant

sophisticated
employs

means

enhancement

“especially

complex

or

applies

especially

when

a

intricate

offense conduct pertaining to the execution or concealment of an
offense.”

USSG § 2B1.1 cmt. n.9(B).

assets

transactions,

or

sophisticated means.”
than

the

or

Id.

concealment

both,

.

“Conduct such as hiding
.

.

ordinarily

indicates

While the scheme must involve “more

or

complexities

inherent

in

fraud,”

Adepoju, 756 F.3d at 257, courts can find that a defendant used
sophisticated

means

even

where

he

did

“not

utilize

the

most

complex means possible to conceal his fraudulent activit[y].”
United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012)
(applying sophisticated means enhancement in USSG § 2T1.1(b)(2)
in

context

presence

of

of

tax

fraud).

efforts

at

“The

court

concealment

need

that

go

only

find

beyond

the
(not

the time of his sentencing, we have held that “[p]ost-sentencing
Guidelines amendments do not make a pre-amendment sentence
unreasonable.”
United States v. McCoy, 804 F.3d 349, 353 (4th
Cir. 2015); see also Peugh v. United States, 133 S. Ct. 2072,
2081 (2013).

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necessarily far beyond . . . ) the concealment inherent in . . .
fraud.”

Id.

(internal quotation marks omitted).

Moreover, a

defendant’s individual actions need not be sophisticated; what
matters

is

the

sophistication

of

the

scheme

as

a

whole.

Adepoju, 756 F.3d at 257; Jinwright, 683 F.3d at 486.
We conclude that the district court did not clearly err in
applying this enhancement.
using

a

popular

online

While Merilia contends that simply

tax

software

to

file

fraudulent

tax

returns is not sophisticated, this argument overlooks the fact
that the district court relied on the scheme as a whole in
applying the enhancement.
that

Merilia

and

his

The district court correctly noted

coconspirators

not

only

used

the

tax

software, but also rented hotel rooms to hide their activities,
caused debit cards to be issued so that their names would not
appear on checks, transferred funds between the debit cards, and
used false identities to further their scheme.
683 F.3d at 486.

See Jinwright,

Thus, by engaging in these additional acts,

the scheme as a whole went beyond the concealment inherent in
fraud itself, and, therefore, the district court did not clearly
err in applying this enhancement.

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III.
Accordingly, we affirm the district court’s judgments.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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