Case: 13-12488   Date Filed: 04/14/2014   Page: 1 of 15


                                                         [DO NOT PUBLISH]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 District of Florida
                      ________________________

                              (April 14, 2014)

Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
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       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 codefendants, 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 that the tax refunds be deposited into bank

accounts they controlled. In total, Clay and her codefendants sought about $11

million in refunds. The 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 and obtaining payments for false income tax returns, in violation

of 18 U.S.C. § 287 (Counts 29–33); wire fraud, in violation 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).
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U.S.C. § 1028A(a)(1), (2) (Counts 39–43). Clay initially pleaded 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, 

and it added an additional 6 levels because the

offense involved 250 or more victims, 

After subtracting two

levels for acceptance of responsibility, 

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
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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 role 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 Count 1 and a consecutive 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. § 3553(c)(1); (2) imposed an unwarranted 6-level enhancement for more

than 250 victims under U.S.S.G. § 2B1.1(b)(2)(C); and (3) erroneously imposed 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, 

, 830 (11th Cir. 2007).
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guidelines] range.” 18 U.S.C. § 3553(c)(1). If the court fails to adequately explain

its chosen sentence, it has committed procedural error. Gall v. United States, 

, 51, 

, 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, 

, 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, 

, 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, 

, 356,

, 2468 (2007). To meet that standard, the sentencing court need not

discuss or explicitly state on the record that it 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, 

, 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 alone is sufficient in post-Booker sentences.”);


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see also 

(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 

, 127 S.Ct. at 2468;

–71.

             B. Enhancements 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 victims 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” that 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 before the




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district court, we review the court’s decision of them only for plain error. United

States v. Hoffman, 

, 1231–32 (11th Cir. 2013).

      Under the sentencing guidelines, a defendant convicted of conspiracy is

responsible for “all reasonably 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.

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, 

, 1319 (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, 

, 1281 (11th Cir. 1999) (noting that “both

§ 1B1.3(a)(1)(B) and its commentary unambiguously direct that sentence

enhancements for co-conspirator conduct will be limited to those acts which are

reasonably foreseeable”).


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      Relying on the application notes to the sentencing guidelines and our Hunter

decision, Clay argues that 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 findings, but she ultimately seeks to retract facts she

admitted (by failing to object to) at sentencing. This is a crucial distinction

between her situation and the authority she cites in which we have required

particularized findings. In Hunter, for example, 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 

. And in Gallo, which Clay does not cite, the defendant argued at

sentencing that a “reasonable foreseeability” finding was required to hold her

responsible for her co-conspirators’ possession of 

. We

held that the district court’s failure to make particularized findings in those cases

required remanding for resentencing. 

. 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,”

United States v. Aguillard, 

, 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
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       In this case, there were no objections to the PSR, no trial, and no real record

on which to base the findings Clay now claims 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 could 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” and that Clay herself was

“responsible for an intended tax loss between $7,000,000 and $20,000,000;” (2)

another undisputed statement in the PSR asserting that Clay and her co-

conspirators filed approximately 1,175 fraudulent tax returns in 2010 and 649

fraudulent returns in 2011;4 (3) Clay’s counsel’s admission at sentencing that she

had personally 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, 

, 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 respect 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 “fraudulent indicators” and that at
least 65% of the 998 returns they filed for tax year 2011 had such indicators.
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       Because Clay neglected to object to the statements in the PSR, she admitted

them as fact for sentencing purposes. See United States v. Wade, 

,

1277 (11th Cir. 2006). We 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, 

,

592 (11th Cir. 2014) (quotation marks omitted) (emphasis added). Thus, the

district court here was entitled to rely on the undisputed statements 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. However conclusory those

statements 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 basis 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, 

(11th Cir.
1990), abrogated on other grounds by United States v. Morrill, 

(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.” 

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, 

, 124 n.1
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                              III. Substantive Reasonableness

       Clay also contends that her sentence is substantively unreasonable under the

totality of the circumstances. United States v. Turner, 

, 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 respect for

the law,” “provide just punishment for the offense,” “afford adequate 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 others. See United States v. Shaw, 

, 1237 (11th Cir. 2009);

United States v. Williams, 

, 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 and 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 counsel 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 offense, (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).
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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. Irey, 

, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted).

      Clay argues that her 121-month sentence is substantively unreasonable

because the district court “appeared to rely solely on the guideline range” and the

need for deterrence while ignoring relevant factors such as her history,

characteristics, and the role she played in the conspiracy. Clay also points out that

she received a sentence three times longer than that of co-conspirator Chante

Mozley, creating an unwarranted sentencing disparity.

      We note at the outset 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-month 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, 

, 746 (11th Cir. 2008) (quotation marks and ellipsis


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omitted). Moreover, we will not reweigh the relevant § 3553(a) factors and will

not “remand for re-sentencing unless 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, 

, 1237

(11th Cir. 2009). The 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 will serve as a deterrent to others. See

18 U.S.C. § 3553(a)(2)(A)–(B). It was within the advisory guidelines range. See

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 was “so minimal

compared to the other two defendants,” and (4) she has a special needs child for

whom she cares. 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) . The district court

permissibly exercised its discretion to attach more weight to the aggravating


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factors than to any of the potential mitigating factors Clay relies on now. 

(11th Cir. 2009) (“The district court . . . is permitted to attach

‘great weight’ to one factor over others.”) (quoting 

, 128 S.Ct.

at 600).

      Clay’s claim of an unwarranted sentencing 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 is inapt because the two defendants are not similarly

situated. See United States v. Spoerke, 

, 1252 (11th Cir. 2009)

(rejecting claim of sentencing disparity 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 count 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 guilty 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


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compared to apples,” and that is not the case for Clay and Mozley. United States

v. Docampo, 

, 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.
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