United States v. Carlyle, 18-11486

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ENESHIA CARLYLE, Defendant-Appellant.

No. 18-11486

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

May 30, 2019

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 8:14-cr-00123-CEH-MAP-2

Appeal from the United States District Court for the Middle District of Florida

Before BRANCH, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:

After pleading guilty to wire fraud, in violation of 18 U.S.C. §§ 1343 and 2, and aggravated identity theft, in violation of 18 U.S.C. §§ 1028A and 2, defendant Eneshia Carlyle appeals the district court's amended forfeiture money judgment imposed pursuant to 18 U.S.C. § 981(a)(1)(C). This Court vacated Carlyle's original forfeiture money judgment and remanded in light of the Supreme Court's recent decision in Honeycutt v. United States, 581 U.S. ___, 137 S. Ct. 1626 (2017). On remand, the district court entered an amended forfeiture money judgment in the amount of $1,457,293.95.

On appeal, Carlyle contends that on remand, the district court misapplied the Honeycutt standard and that the resulting amended forfeiture money judgment violated the Eighth Amendment's Excessive Fines Clause because it is grossly disproportionate to her offense. After review, we affirm the district court's entry of the amended forfeiture money judgment.

I. BACKGROUND FACTS

A. Fraud Scheme and Guilty Plea

Defendant Carlyle and her husband and codefendant, James Lee Cobb, engaged in a scheme to obtain fraudulent tax refunds from the Internal Revenue Service ("IRS") using stolen personal identifying information ("PII"), commonly referred to as stolen identity refund fraud. Much of the PII Carlyle and Cobb used was gleaned from patients' medical records. The codefendants loaded the fraudulently obtained tax refunds onto fraudulent debit cards, which they then used to make purchases or to withdraw funds from ATMs. The scheme was uncoveredwhen police pulled Cobb over in a routine traffic stop and found some of the debit cards and cash transfer receipts in his car.

During a subsequent search of Cobb and Carlyle's marital home, officers found, inter alia, more evidence of the stolen identity refund fraud, including debit cards and stolen PII, as well as the keys to two storage units leased to, and accessed by, Carlyle. Officers searched the storage units and found trash bags full of patient information from various healthcare facilities and information about individuals' deaths and social security numbers. One storage unit also held a red Mercedes registered to Carlyle. Inside the car's trunk, officers found a cheetah-print purse belonging to Carlyle that contained debit cards with various names, patient medical records, utility bills, and social security cards.

Cobb and Carlyle were charged in a ten-count superseding indictment. Carlyle entered a negotiated guilty plea to one count of wire fraud and one count of aggravated identity theft. At her plea hearing, Carlyle admitted, among other things, that: (1) she conspired with her husband Cobb and others to commit the stolen identity refund fraud scheme; (2) she and her husband "together" filed the false tax returns with the IRS to get the refunds; (3) she and her husband used laptop computers and a "hot spot" device to file the false tax returns electronically; (4) she and her husband accessed the refunds by, among other methods, loading them onto pre-paid debit cards; and (5) she and Cobb caused those debit cards tobe mailed into the Middle District of Florida, "where they were ultimately received by CARLYLE and Cobb."

Carlyle also admitted that: (1) during the search of her marital residence, law enforcement found the keys to her storage unit in her purse; (2) workers at the storage unit office identified Carlyle from a photograph and told law enforcement that she "directly accessed both storage units"; (3) law enforcement found evidence of the stolen identity refund fraud scheme in her storage units, including PII and pre-paid debit cards in trash bags and additional pre-paid debit cards in the trunk of her Mercedes; and (4) many of the fraudulent debit cards "had direct connections to Carlyle," such as surveillance video of Carlyle using debit cards at ATMs to make withdrawals, recorded phone calls in which Carlyle attempted to unblock funds from debit cards, or documented calls from a phone number linked to Carlyle accessing debit cards via telephone.

As part of her plea agreement, Carlyle agreed to: (1) a forfeiture money judgment "in an amount to be determined at sentencing but not less than $610,000, representing the amount of proceeds obtained as a result of the scheme"; and (2) forfeiture of Carlyle's Mercedes found in the storage unit, "which was derived from" the proceeds.¹ The IRS later calculated a total loss of $1,820,759 andrequested restitution in that amount. Unable to locate any other property derived from the wire fraud scheme, the government sought a preliminary forfeiture order for Carlyle's Mercedes and for a money judgment against Carlyle in the amount of $1,820,759, pursuant to Federal Rule of Criminal Procedure 32.2(b), 18 U.S.C. § 981(a)(1)(C), and 28 U.S.C. § 2461(c).

B. Sentencing and Original Forfeiture Money Judgment

At sentencing, the district court determined that the intended loss for Carlyle's offenses was $5,613,549 and the actual loss was $1,820,759. The district court imposed a 114-month sentence for Carlyle's wire fraud offense and a consecutive 24-month sentence for Carlyle's aggravated identity theft offense, for a total 138-month sentence. The district court also ordered restitution of $1,820,759 to the IRS, to be paid jointly and severally with Cobb. The government asked the district court also to impose the forfeiture money judgment of $1.8 million jointly and severally with Cobb. The government explained that the $610,000 amount in Carlyle's plea agreement was based on an earlier IRS calculation, but that the IRS had since received more records and had recalculated the loss amount.

After sentencing, the district court entered a written order granting the government's motion for a forfeiture money judgment in the amount of $1,820,759 and for a preliminary order of forfeiture for the Mercedes. The order held Carlyle "jointly and severally liable" with her husband Cobb for the forfeiture money judgment.

C. Carlyle's First Appeal of Forfeiture Money Judgment

While Carlyle's appeal of the forfeiture money judgment was pending, the Supreme Court decided Honeycutt, which involved 21 U.S.C. § 853(a)(1), a criminal forfeiture statute applicable in certain serious drug cases. 581 U.S. at ___, 137 S. Ct. at 1630, 1632. In Honeycutt, the Supreme Court rejected joint and several liability among co-conspirators under 21 U.S.C. § 853, holding that when a defendant is part of a conspiracy, § 853 limits forfeiture to tainted property "the defendant himself actually acquired as the result of the crime." Id. at ___, 137 S. Ct. at 1635.

In Carlyle's initial appeal, the government conceded Honeycutt necessitated a remand. Accordingly, this Court vacated Carlyle's original forfeiture money judgment and remanded to the district court to determine in the first instance whether Honeycutt applied to Carlyle's case and to conduct any factfinding necessary to determine the appropriate amount of monetary forfeiture to beimposed upon Carlyle. United States v. Carlyle, 712 F. App'x 862, 865 (11th Cir. 2017).

D. Post-Remand Evidentiary Hearing

On remand, the district court held an evidentiary hearing, at which the parties agreed, and the district court concluded, that Honeycutt applied to Carlyle's forfeiture under 18 U.S.C. § 981(a)(1)(C). The district court then heard testimony from Special Agent Glen Hayag from the IRS Criminal Investigation Division.

Special Agent Hayag detailed the search of Carlyle's home and storage units and explained how he computed the loss amount that was directly traceable to Carlyle's storage units. In particular, Special Agent Hayag explained that during the original investigation, he worked with the IRS Scheme Development Center to identify which of the 7,000 pieces of PII found in the marital home and Carlyle's storage units were used to obtain fraudulent tax refunds. Special Agent Hayag then determined which of those refunds were sent to debit cards and had other characteristics of being part of the fraud scheme. As a result of his analysis, Special Agent Hayag narrowed the result to 805 pieces of PII from the marital home and storage units that were used to claim $5,613,549 in tax refunds and receive approximately $1.8 million in tax refunds.

Special Agent Hayag testified that between 140 and 150 debit cards using stolen PII were found in Carlyle's storage unit, including 68 debit cards foundinside her cheetah-print purse. In addition, officers found handwritten lists of PII, along with bank account and routing numbers or other notations indicating that tax returns had been successfully filed and tax refunds had been directed to debit cards. To prepare for the post-remand evidentiary hearing, Special Agent Hayag further narrowed the fraudulent refunds to only those traceable to the PII found in Carlyle's storage unit and determined that $3,058,917.85 had been claimed and $1,457,293.95 had been paid using that PII. That $1.4 million number excluded fraudulent refunds connected to debit cards and PII found in the marital home.

E. Amended Forfeiture Money Judgment

Afterward, the district court entered an amended forfeiture money judgment. The district court reiterated its conclusion, agreed to by the parties, that Honeycutt applied to Carlyle's forfeiture under 18 U.S.C. § 981(a)(1)(C). The district court found that the government had proved by a preponderance of the evidence "that Carlyle, within the meaning of Honeycutt, personally obtained $1,457,293.95 as a result of the wire fraud scheme to which she pleaded guilty."

The district court's supporting findings of...