DUNCAN, Circuit Judge:
Defendant-Appellant Saundra Lucille White ("White") appeals her convictions for mail fraud, wire fraud, money laundering, and aggravated identity theft. White contends that she should have received a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the veracity of the affidavit supporting a search warrant authorizing a search of her residence. White also appeals the reasonableness of her sentence. For the reasons that follow, we affirm.
On December 26, 2009, Christal Millner suffered a severe stroke leaving her unable to walk, talk, or drive for the remainder of her life. Pamela Hiler, Millner's cousin,
As part of the guardianship process, Hiler and White inventoried Millner's assets. These included Millner's condominium in Silver Spring, Maryland, a 1993 Volvo, and three Bank of America accounts totaling over $130,000. Millner also had access to her deceased mother's assets, including bank accounts totaling $352,000, approximately $400,000 in savings bonds, and a house. Hiler set about trying to organize Millner's personal affairs and gave White a key to Millner's condo.
Almost immediately after Hiler retained White, White began a scheme to defraud Hiler and Millner. In April 2010, White impersonated Millner to apply for a duplicate license in Millner's name at a Maryland Motor Vehicle Administration ("MVA") location. White used Millner's birth certificate and forged Millner's signature on the application. Because White did not look like the prior photographs of Millner in the MVA database, the MVA confiscated the license. Undeterred, White obtained a counterfeit university identification with White's picture and Millner's name.
In June 2010, White created a Maryland entity called Intel Realty Financial Services ("IRFS"). White opened a bank account for IRFS at Wachovia Bank, listing Millner as IRFS's CEO, owner, and president. The registered address of the bank account was a P.O. Box that White had previously opened. Using the fake university identification and Millner's vehicle registration, White then rented another P.O. Box in Millner's name from UPS. White authorized Millner and IRFS to receive mail from the UPS box.
Shortly thereafter, Millner received the first of many tax deficiency notices. Because Millner was bedridden in a medical facility, Hiler routinely went to Millner's condo to retrieve the mail. In June 2010, Hiler opened a letter addressed to Millner and Millner's mother purportedly from the "IRS, Department of Treasury, Internal Revenue Service." J.A. 1163. The letter referred to an "Offer Compromised Agreement" between Millner and the IRS and requested remittance of $158,500 to IRFS. J.A. 1165. It warned that the office would "file an immediate lien on any and all of" Millner's assets unless the agency received "full and complete payment" by June 19, 2010. J.A. 1165. Hiler asked White, her attorney, to call the number on the notice to ascertain whether it was legitimate and to confirm that Millner actually owed the money. After assuring Hiler that she had looked into the matter and Millner did owe the money, White told Hiler to send the checks on Millner's behalf. Hiler purchased cashier's checks drawn on Millner's account and sent them to IRFS. From June 2010 until early 2013, Millner continued to receive similar tax notices and Hiler continued to send IRFS money from Millner's accounts. Even after Millner died in January 2011, the tax notices continued.
By the end of 2012, the IRFS payments had depleted Millner's assets. Hiler then received a notice addressed to her stating that she, as Millner's personal representative, was responsible for paying the taxes. In addition, Hiler received a voicemail
Ellis contacted the Fraud Section of the Anne Arundel County, Maryland Police Department, which sparked a state and federal investigation of White's conduct. Law enforcement learned that after Hiler wrote checks to IRFS, White deposited the checks into the IRFS bank account. White then forged Millner's names on checks out of the IRFS account to herself, her daughter, trust fund accounts, to purchase vehicles, and to renovate property White owned.
On May 15, 2013, John Davids, Special Agent with the United States Treasury Inspector General for Tax Administration, submitted a sworn affidavit in support of an application for a search and seizure warrant for White's office and residence. The affidavit described White's scheme, including the fraudulent tax notices, the IRFS P.O. Box and bank account opened by someone claiming to be Millner, ATM photographs of White making deposits and withdrawals into the IRFS bank account, and the forged checks from the IRFS account. As to probable cause, Davids relied on his interview with Hiler and his twenty-five years of experience as a Special Agent. According to Davids, Hiler met White at White's office "for meetings that were directly related to this scheme." J.A. 32. Davids also attested that Hiler told him she "has been present at White's home and had discussions related to this scheme there." J.A. 32. A magistrate judge issued the search warrant, which agents executed on May 17, 2013.
The search uncovered a bevy of incriminating evidence, including debit cards for the IRFS bank account, an envelope on which White had been practicing Millner's signature, draft notices to Millner with the IRS seal cut and pasted onto them, mail from the IRFS P.O. Box, the counterfeit university identification card, and several of the cashier's checks Hiler had sent to IRFS. Agents also found carbon copies of forged checks from the IRFS account to White, White's daughter, White's family trust, car dealerships for cars White purchased, and a contractor for construction work on White's property.
On September 15, 2014, a superseding indictment charged White with three counts of mail fraud in violation of 18 U.S.C. § 1341; one count of wire fraud in violation of 18 U.S.C. § 1343; two counts of money laundering in violation of 18 U.S.C. §§ 1956(a), 1957; and one count of aggravated
Hiler was the government's first witness. On cross-examination, Hiler testified that she did not have "any formal business meetings" at White's home and only went to White's home on "social occasions." J.A. 1315. White immediately requested a Franks hearing, arguing that the primary bases for the warrant were Hiler's statements to Davids that she had been to White's home and discussed business — specifically Millner — with White at White's home. On redirect, Hiler clarified that she did not recall "having a full detailed conversation" with White about Millner at White's home but that she may have communicated with White "in passing" about Millner's health. J.A. 1341. Hiler also reiterated that she knew White had a home office but had never been inside of it. After excusing Hiler and the jury, the district court heard arguments and determined that White was not entitled to a Franks hearing.
The jury convicted White on all seven counts. At sentencing, the district court applied several sentencing enhancements, two of which are at issue here. Over White's objection, the district court added a two-level enhancement for misrepresentation of a government agency pursuant to U.S.S.G. § 2B1.1(b)(9)(A) and an additional two-level enhancement for sophisticated means under § 2B1.1(b)(10)(C). The district court also denied White's request for a downward departure based on her psychologist Dr. Michael Hendricks's diagnosis of [Redacted]. Upon the government's motion, the district court ordered Dr. Neil Blumberg to conduct a psychiatric examination of White. Dr. Blumberg's report contradicted Dr. Hendricks's conclusion, finding that the [Redacted] diagnosis was "questionable at best" because the [Redacted] examination was self-reported and had no built-in validity scales. J.A. 2607. Further, Dr. Blumberg's own examination revealed "[Redacted]." J.A. 2608.
At sentencing, the district court weighed the competing expert reports and found Dr. Blumberg's analysis more compelling. The district court calculated White's Guidelines range for Counts 1 to 6 as 87 to 108 months and sentenced White to 108 months. Count 7 carried a mandatory consecutive 24-month sentence, making White's total sentence 132 months. White timely appealed the district court's denial of a Franks hearing and her sentence.
White argues that she was entitled to a Franks hearing because Hiler's testimony called into question the validity of the warrant. The government argues that White waived this argument by not making the request before trial and, even if the argument is not waived, White does not meet the standard for a Franks hearing. "We assess de novo the legal determinations underlying a district court's suppression rulings, including the denial of a Franks hearing, and we review the court's factual findings relating to such rulings for clear error." United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).
In Franks v. Delaware, the Supreme Court carved out a narrow exception to the general rule prohibiting a defendant from attacking a facially valid
Before turning to the substance of White's claim, we must first address the government's threshold argument that White failed to preserve her Franks hearing challenge because she did not make the request prior to trial. Federal Rule of Criminal Procedure 12(b) requires defendants to make suppression requests, like a Franks hearing, before trial "if the basis for the motion is then reasonably available." Fed. R. Crim. P. 12(b)(3). The basis for White's Franks hearing request was Hiler's testimony, which White believes contradicted statements in the affidavit. Because that information was not "reasonably available" before trial, id. White did not waive her right to request a Franks hearing.
Nevertheless, White's Franks claim fails on the merits because she did not make a substantial showing that Agent Davids knowingly, intentionally or with reckless disregard made a false statement in the affidavit. The affidavit stated that Hiler had been to White's home, "discussed this case with her there and knows her to maintain a home office at that location." J.A. 31. At trial, White's counsel asked Hiler a series of questions on cross-examination regarding her interactions at White's home.
J.A. 1314-15. Based on those answers, White immediately requested a Franks hearing. The district court first allowed Hiler to finish her testimony. On redirect, Hiler clarified that she had seen White's home office before, though she had never been inside of the room. The government also asked Hiler whether she had ever discussed Millner with White at her home. Hiler responded that she did not "recall... having a full detailed conversation" with White about Millner but they may have discussed Millner's healthcare "in passing" at White's home. J.A. 1341.
Outside of the presence of the witness and the jury, the district court heard arguments and found that Hiler's statements did not satisfy the requisite showing for a Franks hearing because "at best" Hiler's testimony evinced "inconsistent versions with varying degrees of certainty ... about communications that occurred" over two years prior. J.A. 1517. Moreover, the affidavit also cited Agent Davids's "training and experience that persons operating fraudulent schemes ... often transport[] and store[] evidence, fruits and instrumentalities of the crime from the office to the home and vice versa." J.A. 31-32. Agent Davids attested to his knowledge "from training and experience that in this modern technological environment, many times the line between office, home and vehicle is often blurred because of technology that
The district court did not err in finding that White failed to make the requisite showing for a Franks hearing. First, White cannot point to a false statement. Hiler's trial testimony did not contradict Agent Davids's assertions that (1) Hiler discussed Millner with White at her home and (2) Hiler knew White had a home office from which she conducted business. Hiler's acknowledgment on redirect that she had conversations regarding Millner with White at White's home — no matter how fleeting — comport with Agent Davids's statements in the affidavit.
Second, White cannot establish the requisite scienter under Franks. Because the Franks test is from the perspective of the affiant, White must show that Agent Davids "knowingly and intentionally, or with reckless disregard for the truth" included those statements in his affidavit. Franks, 438 U.S. at 155, 98 S.Ct. 2674. White asserts Agent Davids attributed statements to Hiler that she did not make, which is unlikely to have been an innocent mistake. However, a defendant's showing for a Franks hearing "must be more than conclusory." Id. at 171, 98 S.Ct. 2674. White did not offer any proof showing that Agent Davids intentionally or recklessly included a false statement in the affidavit.
We now turn to White's challenges to the reasonableness of her sentence. White argues that the district court erred in applying (1) a two-level enhancement for misrepresenting a government agency and (2) a two-level enhancement for sophisticated means. White also contends that the district court should have reduced her sentence based on her [Redacted] diagnosis. We discuss each argument in turn.
When reviewing a criminal sentence, we first ensure that the district court did not commit significant procedural error, such as incorrectly calculating the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We review the district court's factual findings for clear error and legal conclusions de novo. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). If there is no procedural error, we review the substantive reasonableness of a sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. 586. A within-Guidelines range sentence is presumptively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
The Sentencing Guidelines allow a district court to enhance a sentence by two levels when a fraud "involved a misrepresentation that the defendant was acting on behalf of ... a government agency." U.S.S.G. § 2B1.1(b)(9)(A) (2014). The district court applied this enhancement to White based on two pieces of evidence: (1) the fraudulent tax statements White created that induced Hiler to remit money and (2) the voicemail in which an unidentified
White argues that the notices cannot trigger the enhancement because White did not sign her name to them or otherwise directly state that she was acting on behalf of a government taxing authority. For support, White points to the application notes for § 2B1.1(b)(9)(A), which provide three examples of when the enhancement should apply. Id. § 2B1.1 cmt. 8(B). White argues that these examples show that the Sentencing Commission intended the enhancement to apply only when a defendant directly and verbally misrepresents that she is acting on behalf of a government agency.
White's claim lacks merit for two reasons. First, while commentary to the Sentencing Guidelines is authoritative, we only turn to the commentary when the implicated Guideline is ambiguous. United States v. Ashford, 718 F.3d 377, 382 (4th Cir. 2013). Here, the Sentencing Commission was clear — the enhancement encompasses any fraud that "involved a misrepresentation." § 2B1.1(b)(9)(A). The Commission's use of the passive voice forecloses White's argument that the defendant must make a direct misrepresentation. Second, even if we consider the application note's illustrations, they do not explicitly require a direct misrepresentation. The first example involves a "defendant who solicited contributions for a non-existent famine relief organization." § 2B1.1 cmt. 8(B)(i). This example does not specify how the defendant solicited money and White's behavior here is analogous: she solicited tax payments through the fraudulent IRS notices and thereby misrepresented a government agency.
White's challenge to the voicemail is equally unavailing. White argues that the voicemail cannot be attributed to her because the caller is unidentified. However, whether White is the actual person on the phone is irrelevant because the Guidelines apply to all conduct "commanded, induced, procured, or willfully caused by the defendant." § 1B1.3(a)(1)(A). The return phone number for the voicemail was a number White activated shortly after beginning the scheme, appeared on the fraudulent tax notices, and was connected to numerous documents in White's home. The district court did not commit clear error in finding that either White (in a disguised voice) or someone at White's direction made the phone call. Therefore, we affirm the district court's application of a two-level enhancement for misrepresentation of a government agency.
The Guidelines also provide for a two-level sophisticated-means enhancement when a fraud involves "especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense." § 2B1.1 cmt. 9(B). "Conduct such as hiding assets or transactions, or both, through the use of fictitious entities ... also ordinarily indicates sophisticated means." Id. Whether a defendant's conduct involved sophisticated means is a factual inquiry that we review for clear error. United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014). The sophisticated-means enhancement "applies where the entirety of a scheme constitutes sophisticated means, even if every individual action is not sophisticated." Id. at 257.
The elaborate elements of White's scheme belie her attempt to downplay her conduct as common-place fraud. White took advantage of her relationship with a church member, Hiler, to scam approximately
Finally, turning to the substantive reasonableness of White's sentence, we must consider whether, looking at the totality of the circumstances, the district court abused its discretion in sentencing White to 108 months for Counts 1 to 6, which was the top end of the Guidelines range.
At sentencing, the district court was faced with two competing expert reports. Post-conviction, White's expert Dr. Hendricks updated his initial evaluation of White, concluding she suffered from the
For the reasons stated above, the judgment of the district court is
AFFIRMED.