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                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-12134
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:13-cr-00082-LSC-TMP-5



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

CLIFFTON S. MORMON,
a.k.a. Kurt,
a.k.a. Curt,
a.k.a. Tippy,
a.k.a. Tip,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                           (March 13, 2015)
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Before HULL, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Cliffton Mormon appeals his sentence of 95 months of imprisonment for one

count of conspiring to commit bank fraud, 18 U.S.C. § 1349, and two counts of

aiding and abetting aggravated identity theft, 

2. Mormon challenges

the enhancement of his sentence for being an organizer or leader of a conspiracy to

cash counterfeit checks; for an amount of loss exceeding $120,000; for having 50

or more victims; and for using sophisticated means or, alternatively, for relocating

to evade law enforcement. Mormon also challenges, for the first time, the

requirement that he complete 24 hours of community service by washing dishes at

a soup kitchen or similar facility as a special condition of his supervised release.

We affirm the special condition of Mormon’s supervised release and all except one

enhancement applied to Mormon. Because the record does not support the finding

that Mormon’s offense involved 50 victims, we vacate his sentence and remand for

the district court to resentence Mormon using the two-level enhancement applied

to an offense involving 10 or more victims.

      The district court did not clearly err in finding that Mormon was an

organizer or leader of the conspiracy. A defendant is subject to a four-level

enhancement of his offense level if he was “an organizer or leader of a criminal

activity that involved five or more participants or was otherwise extensive,” United


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States Sentencing Guidelines Manual § 3B1.1(a) (Nov. 2013), and if he exercised

authority over “one or more other participants,” 

cmt. n.2. The factual

proffer for Mormon’s pleas of guilty and the testimony at sentencing from John

Bailey, an agent of the United States Postal Inspection Service, established that

Mormon recruited a person to provide insider information about banking

operations and that Mormon directed a counterfeit check-cashing operation that

involved several persons. See 

cmt. n.4. Mormon persuaded his

girlfriend, an employee of Regions Bank, to join the conspiracy and directed her to

provide information about bank procedures, to access bank databases to determine

which accounts at different banks to pilfer, and to print images of checks to

counterfeit. Mormon also moved from Atlanta, Georgia, where the headquarters of

the conspiracy was located, to Birmingham, Alabama, to supervise local

operations; he produced counterfeit checks in his hotel room but conducted

meetings at a coconspirator’s residence; he supervised coconspirators who

recruited persons to cash the counterfeit checks; and he performed surveillance

when the recruits entered banks to cash the counterfeit checks. The evidence

supports the finding that Mormon orchestrated the activities of the Birmingham

counterfeiting operation.

      The district court also did not clearly err in finding that the amount of loss

attributable to Mormon exceeded $120,000. A defendant is responsible for


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monetary losses that he causes and that result from the reasonably foreseeable acts

of his coconspirators in furtherance of the conspiracy, 

2B1.1

cmt n.3. When the monetary losses exceed $120,000, the defendant is subject to a

ten-level enhancement of his offense level. 

Evidence

introduced during Mormon’s change of plea and sentencing hearings established

that officers in southern Georgia found Mormon in possession of check stock

paper; stolen checks; partially completed and stubbed counterfeit checks connected

to 27 business bank accounts; a computer containing check-writing software and

data entries showing that $84,000 in checks had been printed; and 24 images of

checks that each had a face value exceeding $1,000. The district court reasonably

considered the value of the images of the checks and Mormon’s production

capabilities to determine the amount of loss. See United States v. Grant, 

, 765 (11th Cir. 2005); United States v. Wai-Keung, 

, 877 (11th

Cir. 1997). The district court also reasonably attributed to Mormon the value of

counterfeit checks that his known coconspirators negotiated using stolen account

information, some of which was discovered in Mormon’s hotel room and some of

which corresponded to accounts located by his girlfriend. See United States v.

Baldwin, 

, 727–28 (11th Cir. 2014). Mormon’s coconspirators cashed

$29,504 in counterfeit checks and attempted to cash more checks valuing $42,622

at a Regions Bank; cashed $43,104 in counterfeit checks and attempted to cash


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more checks valuing $58,081 at a Wells Fargo Bank; and cashed one counterfeit

check for $1,981.37 and attempted to cash a second check for $1,393.75 at a

BBVA Compass Bank. The value of the check images and of the checks that

Mormon’s coconspirators negotiated or attempted to negotiate exceed $120,000.

      The district court clearly erred when it found that Mormon’s victims

numbered at least 50. “[I]n a case involving a means of identification,” “any

individual whose means of identification was used unlawfully or without

authority” is a “victim.” U.S.S.G. § 2B1.1 cmt. n.4(E). If there are 50 or more

victims, a defendant is subject to a four-level increase in his offense level, 

but a two-level increase applies to an offense involving 10 or

more victims, 

Mormon acknowledges that he “used” the

means of identification of 3 banks and 18 account holders. Investigator Bailey

testified that officers seized from Mormon a box containing 24 images of checks

from different accounts, but the investigator testified that only two of those images

were used to create “partially-completed counterfeit checks.” See United States v.

Hall, 

, 1322 (11th Cir. 2013). Although Investigator Bailey testified

that he and his team “reviewed hundreds of checks that were passed” by the

conspiracy, the record is devoid of evidence that those checks were created using

the means of identification of more than one individual or that those checks

involved a victim different than those admitted to by Mormon. The government is


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required to introduce “sufficient and reliable” evidence to identify the victims of an

offense, see United States v. Washington, 

, 1361 (11th Cir. 2013),

and that is particularly important in a case like this where the conspirators cashed

several checks against the same accounts multiple times. Because the government

identified, at most, 23 victims, the district court must resentence Mormon using the

two-level enhancement applied to an offense involving 10 or more victims.

      Even if we were to assume that Mormon is not subject to a two-level

increase in his base offense level for relocating the check-cashing operation to

evade law enforcement officials, see U.S.S.G. § 2B1.1(b)(10)(A), the district court

did not clearly err when it enhanced Mormon’s offense level on the alternative

ground that he used sophisticated means, see 

Mormon used

especially complex or intricate conduct to execute the scheme and to conceal the

counterfeit operation and his involvement in the operations. 

cmt.

n.9(B); see United States v. Ghertler, 

, 1267–68 (11th Cir. 2010). He

determined which bank accounts to target and how much money to draw using

confidential information that his girlfriend acquired about the check numbers and

their amounts that had cleared to ensure that the counterfeit checks matched the

pattern of activity of the accounts. Mormon also acquired images of real checks

from which he copied account and routing numbers and other information that he

used to create counterfeit checks of sufficient quality that they were accepted by


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banks. And Mormon had coconspirators recruit persons to cash the checks; he

concealed his identity and his base of operations from those recruits; and the

recruits were ordinarily homeless or transient persons who were difficult to trace

and were easily enticed to serve on a temporary basis in exchange for money or

other things of value. The district court was entitled to find that Mormon’s scheme

was sophisticated.

      The district court did not plainly err by ordering Mormon to complete 24

hours of community service by washing dishes at a soup kitchen or similar facility

during his supervised release. “Community service may be imposed as a condition

of supervised release,” U.S.S.G. § 5D1.3(e)(3); see also 

and the district

court reasonably determined that requiring Mormon to wash dishes enabled him to

use that past employment to benefit others who were less privileged while teaching

him the value of honest employment, see 18 U.S.C. §§ 3583(d)(1), 3553(a). The

district court found that Mormon’s fraud “demonstrate[d] an absolute callous

disregard for [the] law, for people’s rights, [and] for the interest of others,” and the

district court reasonably could have determined that Morman could best make

amends by serving the persons whom he enticed to engage in criminal activities for

his financial gain. Mormon argues that his term of community service involves a

“greater deprivation of liberty than is reasonably necessary” to achieve the

statutory goals of sentencing, 

but the condition that Mormon


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serve for “four hours per week for six weeks” is far below the maximum term of

community service recommended by the advisory guidelines. See U.S.S.G. § 5F1.3

cmt. n.1. “[T]here can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving it,” United States v. Lejarde-Rada,

, 1291 (11th Cir. 2003), and Mormon fails to cite any precedent

holding that community service in the form of washing dishes for the length of one

day is an excessive deprivation of liberty.

      We AFFIRM the special condition of Mormon’s supervised release and the

enhancement of his sentence for being an organizer or leader of a conspiracy to

cash counterfeit checks, for causing a loss of more than $120,000, and for his use

of sophisticated means. But because the record does not support the finding that

Mormon’s offense involved 50 victims, we VACATE his sentence and REMAND

for the district court to resentence Mormon using the two-level enhancement

applied to an offense involving 10 or more victims.




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