Argued: March 22, 2018
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00021-RJC-DCK-3)
Ojugo Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant.
Katherine Wood Bowman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Kenneth A. Blanco, Acting Assistant Attorney General, Trevor
N. McFadden, Deputy Assistant Attorney General, Ellen R.
Meltzer, William H. Bowne, Gustav W. Eyler, Fraud Section,
Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Jill Westmoreland Rose, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Lee Shephard conspired to defraud U.S. residents through a
telemarketing sweepstakes scheme. From a call center in Costa
Rica, Shephard and others would tell their unwitting victims
that they had won a sweepstakes prize. The catch? Winners
could receive their prize money only after paying a
"refundable insurance fee." Victims of the scheme
wired thousands of dollars to the call center, but of course,
no fees were refunded and no prize money was ever paid.
pleaded guilty to conspiracy to commit wire and mail fraud,
conspiracy to commit money laundering, eight substantive
counts of wire fraud and aiding and abetting, and four
substantive counts of money laundering and aiding and
abetting. She was sentenced to ninety-six months in prison
and ordered to pay $7, 215, 695.20 in restitution. On appeal,
she challenges (1) the district court's application of
the vulnerable victim sentencing enhancement and (2) its
calculation of the actual loss amount. We affirm.
2007 through February 2015, Shephard "participated in,
and otherwise facilitated, " a sweepstakes telemarketing
call center in Costa Rica for the purpose of defrauding U.S.
residents by convincing them to pay money in order to claim a
fake sweepstakes prize. J.A. 158.
call center required "openers" to call residents in
the United States and inform them that they had won second
prize in a sweepstakes in the amount of $350, 000 to $450,
000. The "openers"-often falsely representing
themselves as U.S. government employees-would explain that in
order to receive the prize money, the U.S. resident must pay
a "refundable insurance fee" by wiring money via
Western Union, MoneyGram or an international bank. Victims
then wired money to a "runner, " who would collect
wire transfers at banks in Costa Rica, or a "bridge,
" who would receive the funds in the United States and
forward them along to the call center in Costa Rica.
someone fell prey to the scam and made an initial payment, a
"loader" would call again and convince the victim
to send more money. The "loader" would tell the
victim that a mistake had been made and he had actually won
first prize, which was more than $3, 000, 000. Of course, the
victim would first need to pay thousands of additional
dollars in increased insurance fees to claim this larger
prize. If the victim fell for the scheme again and
made another payment, the "loader" would
continuously raise the sweepstakes prize and ask for more
money from the same victim. This process is known as
"reloading." At various times throughout her
tenure, Shephard worked in the call center as an
"opener, " a "runner, " and a
was arrested in Costa Rica in July 2015 and then extradited
to the United States. She pleaded guilty to all fourteen
counts of her indictment without the benefit of a plea
agreement. Shephard also agreed to a written factual basis
for her plea, which described the sweepstakes scheme and her
involvement. Shephard reserved her right to object to two
proposed findings at sentencing: (1) that the loss amount was
over $3, 500, 000 and (2) that she knew that many of the
victims were over the age of fifty-five and vulnerable.
presentence report ("PSR") relied on the factual
basis, as well as two written statements from Shephard, to
calculate the appropriate Guidelines range. The PSR applied a
base offense level of 7 for wire fraud, a number of
enhancements, and a three-level downward adjustment for
acceptance of responsibility. For our purposes, only two of
the enhancements matter: First, the PSR applied a two-level
enhancement because the offense involved vulnerable victims.
U.S.S.G. § 3A1.1(b)(1). Second, it applied an
eighteen-level increase for a loss amount of more than $3,
500, 000 but less than or equal to $9, 500, 000. U.S.S.G.
§ 2B1.1(b)(1)(J). The PSR relied on the financial
analysis prepared by the government, which explained that
during Shephard's involvement the loss amount collected
from victims via Western Union was $5, 876, 814.27 and the
loss amount collected via MoneyGram was $1, 338, 880.93,
resulting in a total loss amount of $7, 215, 695.20.
objected to the vulnerable victim enhancement and the loss
amount calculation. She argued there was no evidence that the
scheme targeted unusually vulnerable victims or that Shephard
knew it targeted such victims. As for the loss amount, she
claimed it should be less than $3, 500, 000 because the
victims' losses were not adequately documented and her
involvement in the call center was sporadic. The court
overruled the objection to the vulnerable victim enhancement
"based on responses from the government, consistent with
my other rulings in other [related] call center cases that .
. . vulnerable victim enhancements were appropriate in the
nature of how this fraud activity worked." J.A. 71. And
it affirmed the loss amount as a "conservative
estimate" based on "solid methodology." J.A.
70. The court further explained that Shephard was responsible
for the criminal activity of her coconspirators even after
her personal participation ended because she never
affirmatively withdrew from the conspiracy.
district court adopted the PSR's Guidelines calculation,
which applied a total offense level of 34 and a criminal
history of I for a Guidelines range of 151 to 188 months'
imprisonment. The court then departed and varied downward to
arrive at a sentence of ninety-six months' imprisonment
and $7, 215, 695.20 in restitution.
filed a timely appeal.
review criminal sentences for reasonableness using an abuse
of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). A sentence based on an improperly
calculated Guidelines range is procedurally unreasonable.
United States v. Davis, 679 F.3d 177, 182 (4th Cir.
2012). In reviewing whether a sentencing court properly
calculated the Guidelines ...