Case: 15-14718   Date Filed: 09/14/2016   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-14718
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:15-cr-60045-WJZ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                versus

BRANDI MARY JANICE STROMAN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (September 14, 2016)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Defendant-Appellant Brandi Mary Janice Stroman, a federal inmate, appeals

from the final judgment and commitment order entered by the United States

District Court for the Southern District of Florida on October 14, 2015. During

sentencing, the district court applied a three-level enhancement to Stroman’s base

offense level pursuant to U.S.S.G. §3B1.1(b) for her aggravating role in the

offense. On appeal, Stroman argues that the district court committed clear error in

applying the three-level §3B1.1(b) enhancement. Stroman further claims that the

district court committed clear error in declining to grant a reduction in Stroman’s

base offense level based on her minor role in the offense pursuant to §3B1.2(b).

Upon careful review of the record and the briefs, we affirm.

      The Federal Sentencing Guidelines provides that a sentencing judge may

increase the offense level based on the defendant’s aggravating role in the offense

as follows:

              Based on the defendant's role in the offense, increase the
              offense level as follows:

              (a) If the defendant was an organizer or leader of a
              criminal activity that involved five or more participants
              or was otherwise extensive, increase by 4 levels.

              (b) If the defendant was a manager or supervisor (but not
              an organizer or leader) and the criminal activity involved
              five or more participants or was otherwise extensive,
              increase by 3 levels.




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              (c) If the defendant was an organizer, leader, manager, or
              supervisor in any criminal activity other than described in
              (a) or (b), increase by 2 levels.


U.S.S.G. §3B1.1. As indicated by the text of the Sentencing Guidelines, to qualify

for a three-level enhancement pursuant to §3B1.1(b), the court must find that (1)

the defendant was “a manager or supervisor (but not an organizer or leader); and

(2) the criminal activity involved five or more participants “or was otherwise

extensive.”

      Application Note 2 clarifies the type of leadership role a defendant must

play in a conspiracy to warrant an enhancement:

              To qualify for an adjustment under this section, the
              defendant must have been the organizer, leader, manager,
              or supervisor of one or more other participants. An
              upward departure may be warranted, however, in the case
              of a defendant who did not organize, lead, manage, or
              supervise another participant, but who nevertheless
              exercised management responsibility over the property,
              assets, or activities of a criminal organization.

cmt. n.2.

      Application Note 4 lists a number of factors for the district court to consider

in determining the extent of the defendant's aggravating role, including the

following:

              [T]he exercise of decision making authority, the nature of
              participation in the commission of the offense, the
              recruitment of accomplices, the claimed right to a larger
              share of the fruits of the crime, the degree of participation

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             in planning or organizing the offense, the nature and
             scope of the illegal activity, and the degree of control and
             authority exercised over others.

n.4.

      The Federal Sentencing Guidelines provides that a sentencing judge may

decrease the base offense level based on the defendant’s mitigating role in the

offense as follows:

             Based on the defendant's role in the offense, decrease the
             offense level as follows:

             (a) If the defendant was a minimal participant in any
             criminal activity, decrease by 4 levels.

             (b) If the defendant was a minor participant in any
             criminal activity, decrease by 2 levels.

             In cases falling between (a) and (b), decrease by 3 levels.

§3B1.2. In determining whether a defendant’s role was “minor,” a district court

considers two principles. “First and foremost, the district court must measure the

defendant’s role against the relevant conduct for which she has been held

accountable.” United States v. Rodriguez De Varon, 

, 940 (11th Cir.

1999) (en banc). “In other words, the district court must assess whether the

defendant is a minor or minimal participant in relation to the relevant conduct

attributed to the defendant in calculating her base offense level.” 

“Only

if the defendant can establish that she played a relatively minor role in the conduct

for which she has already been held accountable – not a minor role in any larger

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criminal conspiracy – should the district court grant a downward adjustment for

minor role in the offense.” 

Second, “the district court may also measure

the defendant’s culpability in comparison to that of other participants in the

relevant conduct.” 

culpability does not end the inquiry.”

that a defendant's role may be less than that of other participants

engaged in the relevant conduct may not be dispositive of role in the offense, since

it is possible that none are minor or minimal participants.” 

district

court must determine that the defendant was less culpable than most other

participants in her relevant conduct.” 

instant case, Stroman pled guilty to four counts related to her admitted

involvement in a conspiracy involving the use of stolen personal identity

information to obtain and deposit fraudulent tax receipts in the bank accounts of

herself and her various co-conspirators. At sentencing, the district court found by a

preponderance of evidence that Stroman was “a manager or supervisor” because

she “specifically directed other codefendants to withdraw funds and to meet with

her thereafter.” DE 223:41. The district court also found by a preponderance of

evidence that Stroman’s criminal activity “was otherwise extensive” because

Stroman filed at least 27 fraudulent tax returns with the Internal Revenue Service,

which resulted in 14 fraudulent refunds being deposited into the accounts of

Stroman or her codefendants. DE 223:40-41. The district court then determined



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that Stroman was not entitled to a mitigating role downward departure because

“Stroman was a major participant in th[e] scheme.” DE 223:41. The district court

further stated that “[t]he very fact that she might have been less culpable than

[codefendant] Mr. Bryant is not an indication that she was not otherwise a major

participant in this scheme.” DE 223:41.

      We review the district court’s application of the Sentencing Guidelines de

novo and its factual findings for clear error. United States v. Lee, 

,

892 (11th Cir. 2005).

      On appeal, Stroman argues that the district court clearly erred in applying a

three-level increase to the base offense level pursuant to §3B1.1(b) for her

aggravating role. Specifically, she argues that she was not a “manager or

supervisor” and that the “otherwise extensive” prong of §3B1.1(b) was not met.

Stroman further argues that the district court clearly erred in declining to apply a

two-level decrease in her base offense level based on her “minor” role in the

offense pursuant to §3B1.2(b).

      First, Stroman claims that that the district court clearly erred in finding that

she was a “manager or supervisor” for the purposes of the §3B1.1(b) enhancement

because, according to Stroman, she “simply followed the instructions” of

codefendant Michael Bryant, whom she refers to as the “mastermind” of the

criminal conspiracy. We disagree. Stroman’s own factual proffer supports the



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district court’s finding that Stroman specifically directed other codefendants in the

tax fraud conspiracy. See, e.g., DE 116:2 (“[T]he defendant obtained the bank

account information of co-defendants . . . . The defendant then provided the

account information to the target, and the target filed the false returns, generating

fraudulent refunds, and using the bank account information of the co-defendants to

receive the refunds. After the money was deposited into the accounts, the

defendant then contacted the co-defendants, and directed them to withdraw the

funds.”).

      Second, Stroman claims that the “otherwise extensive” prong of §3B1.1(b)

was not met because, unlike Bryant, she was not responsible for “directly

procuring the [personal identity information] in the conspiracy.” Indeed, Stroman

has consistently argued that the “otherwise extensive” prong of §3B1.1(b) is not

met because Stroman’s participation was less severe than Bryant’s participation.

For instance, at the sentencing hearing, Stroman’s counsel and the court engaged in

the following colloquy:

             THE COURT:         So tell me why this criminal activity
             that involved Ms. Stroman was not otherwise extensive.

             MR SAMMS:          Well, because, Judge, I think her
             involvement was not otherwise extensive. I think the
             “otherwise extensive” would apply to Michael Bryant, in
             other words, or the people that actually got the personal
             identifiers. She never got any personal identifiers from
             anyone. She was provided that by Michael Bryant.
             Michael Bryant is the one that contacted the female that

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             worked at the healthy agency, and they worked out a way
             to actually go into the computers and get all those
             personal identifiers. That is otherwise extensive, those
             kinds of activities where you’re going beyond just the
             normal cashing of checks. You’re going beyond.

                    You’re otherwise extensive when you have a way
             of getting the personal information. You are otherwise
             extensive when you have a way of manipulating the
             computer system to get those identifiers. You are
             extensive when you can get someone who was involved
             in the healthcare industry to give you the code to break
             into the -- through the computers and get those personal
             identifiers. That is otherwise extensive.

                   Ms. Stroman took a check and put it in her
             account. That’s not otherwise extensive. And so that is
             why I don’t think that position also applies to her as well.

DE 223:10-11.

      Stroman’s argument both below and on appeal appears to assume that the

term “otherwise extensive” in §3B1.1(b) refers to the relative degree or amount of

a defendant’s participation in a criminal conspiracy vis-à-vis other codefendants. It

does not. The plain text of §3B1.1(b) indicates that the subject modified by the

adjectival phrase “otherwise extensive” is not the relative degree or amount of

involvement vis-à-vis other codefendants but rather the quality of the “criminal

activity” itself. Thus, the prong is satisfied if “the criminal activity involved five or

more participants or was otherwise extensive.” U.S.S.G. §3B1.1(b). The phrase

“other extensive,” accordingly, refers to “other” ways—besides the number of

participants—that “criminal activity” may be considered “extensive.” Although

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Stroman argues that her involvement was less extensive than Bryant’s

involvement, she fails to advance any argument that the criminal activity at issue in

the instant case was not “otherwise extensive.” Accordingly, we conclude that the

district court did not clearly err in applying a three-level sentencing enhancement

pursuant to §3B1.1(b).

      Finally, Stroman argues that she was entitled to a two-level decrease in her

base offense level based on her “minor” role in the offense pursuant to §3B1.2(b).

Specifically, she argues that she is entitled to the reduction because her role in the

tax return fraud scheme relatively minor as compared to codefendant Michael

Bryant, whom she characterizes as an “elite crime lord.” Appellant’s Br. at 14. We

disagree. First, Stroman fails to satisfy the first prong of the De Varon test because

she nowhere argues that her participation in the scheme was minor “in relation to

the relevant conduct attributed to the defendant in calculating her base offense

level.” See Rodriguez De 

–44. Second, Stroman fails to

satisfy the second prong of the De Varon test because she has not satisfied her

burden of showing that she was “less culpable than most other participants in her

relevant conduct.” 

Although Stroman’s participation in the scheme may

have been less severe than codefendant Bryant’s participation, about which we

express no opinion, such a fact would be insufficient to entitle Stroman to a minor




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role reduction. Accordingly, we conclude that the district court did not clearly err

in denying Stroman’s request for a minor role reduction pursuant to §3B1.2(b).

      For the foregoing reasons, the judgment of the district court is affirmed.

      AFFIRMED.




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