USCA Opinion as to Amber Rewis Bruey re 116 Notice of Appeal. Decision — USA v. Bruey et al. (Dkt. 162, M.D. Fla.)

Record facts

U.S. District Court for the Middle District of Florida · No. 2:21-cr-00074 · Doc. 162 · 2023-12-29 · Docket on CourtListener

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[DO NOT PUBLISH] 
In the 
United States Court of Appeals 
For the Eleventh Circuit 
 
____________________ 
No. 22-12532 
Non-Argument Calendar
 
____________________ 
 
UNITED STATES OF AMERICA,  
 Plaintiff-Appellee, 
versus 
AMBER REWIS BRUEY,  
 
 Defendant-Appellant. 
 
____________________ 
Appeal from the United States District Court 
for the Middle District of Florida 
D.C. Docket No. 2:21-cr-00074-TPB-KCD-1 
____________________ 
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Opinion of the Court 
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Before WILSON, LUCK, and LAGOA, Circuit Judges.  
PER CURIAM: 
 
Amber Rewis Bruey appeals her total sentence of 48 months’ 
imprisonment with 3 years of supervised release and an order of 
restitution for conspiracy to commit wire fraud, wire fraud, con-
spiracy to commit money laundering, and illegal monetary trans-
actions.  On appeal, Bruey argues that the district court incorrectly 
applied the sophisticated laundering enhancement under U.S.S.G. 
§ 2S1.1(b)(3) based on facts supporting the sophisticated means en-
hancement under U.S.S.G. § 2B1.1(b)(10)(C).  Bruey further argues 
that if the district court applied the right standard under 
§ 2S1.1(b)(3), it would have concluded that the enhancement did 
not apply.  For the following reasons, we affirm. 
I. 
Bruey was charged in an indictment with: one count of con-
spiracy to commit wire fraud in violation of 18 U.S.C. § 1349; ten 
counts of wire fraud in violation of 18 U.S.C. §§ 1343, 1349, and 2; 
one count of conspiracy to commit money laundering in violation 
of 18 U.S.C. § 1956(h); and four counts of illegal monetary transac-
tions in violation of 18 U.S.C. §§ 1957 and 2.  Bruey plead guilty to 
these counts, and the district court adjudicated her guilty.   
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”), which reported the following.  
Bruey and her husband, a co-defendant below, (“the Brueys”) 
owned and operated different purported businesses.  Bruey also 
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individually owned multiple purported businesses.  Between 2020 
and 2021, the Brueys submitted fraudulent applications for loans 
under two programs authorized by the Coronavirus Aid, Relief, 
and Economic Security Act (the “CARES Act”).  Pub. L. No. 116-
136, 134 Stat. 281 (2020). 
First, between April 2, 2020, and February 23, 2021, the 
Brueys applied for 15 Economic Injury Disaster Loans (“EIDL”).  
Id. § 1110, 134 Stat. at 306.  Eleven of these applications had Bruey’s 
name on them, and six of the fifteen were ultimately funded for a 
total of $763,300.  In support of at least four of the eleven applica-
tions, Bruey created false documents to give the impression that 
the business and application were legitimate.  These documents in-
cluded a fraudulent tax return and a detailed portion of a fraudulent 
business lease.  She also created false Google business pages, busi-
ness websites to correspond to the Google business information, 
and Google reviews by alias accounts which had purported feed-
back and customer photographs.  For example, on April 3, 2020, 
she submitted a fraudulent EIDL application for one of her pur-
ported businesses in which she falsely claimed that it had $96,228 
in gross revenue.  She also falsely certified that she had not been on 
probation for any criminal offense.  The Small Business Admin-
istration (“SBA”) initially declined her application, believing it to be 
a duplicate.  Bruey filed a request for reconsideration and in sup-
port of her request, she submitted a fraudulent 2019 Schedule C 
Form 1040 tax return that listed the business’s gross income as 
$232,245.  She also created and submitted a fraudulent income 
statement that mirrored the information on the false tax return.  
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After Bruey signed a form attesting to the submitted figures, the 
SBA approved her application and issued her $113,200.   
Second, between April 12, 2020, and June 25, 2020, the 
Brueys applied for twelve loans under the Paycheck Protection 
Program (“PPP”).  Id. § 1102, 134 Stat. at 286 (codified at 15 U.S.C. 
§ 636(a)(36)).  Ten of these applications had Bruey’s name on them, 
and six of the twelve were funded for a total around $118,000.  In 
support of at least five applications, Bruey again created false doc-
uments to give the impression that her business and application 
were legitimate.  These fictitious documents were relied upon by 
lenders in approving her PPP loans.  Bruey also created fraudulent 
tax returns for different years claiming business income between 
$96,000 and $226,540, and income statements that aligned with the 
income claimed on those tax returns.  For example, in support of 
one application filed on April 12, 2020, Bruey submitted a fraudu-
lent 2019 1099-MISC tax document that reflected her yearly income 
as $96,000, and again falsely denied that she had been on probation 
within the last five years.  She also submitted a fraudulent 2019 
Form 1040 Schedule C tax document listing the gross income for 
her business as $132,245 with a net profit of $114,883.  But records 
from the IRS revealed she never filed this tax document.  Based on 
the information supplied in the fraudulent documents, the lender 
approved her loan application and deposited $20,000 in one of 
Bruey’s bank accounts.   
In all, the Brueys submitted over two dozen fraudulent ap-
plications seeking benefits totaling close to $2 million.  Twelve of 
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these applications were approved, and the Brueys received 
$880,000 in funds.  Bruey misused these funds by, among other 
things, satisfying a personal debt and purchasing vehicles and a 
home.   
After grouping all the counts together for guidelines calcu-
lations purposes, see U.S.S.G. § 3D1.2(d), the PSI calculated a base 
offense level of 23 pursuant to U.S.S.G. § 2S1.1(a)(1).  The PSI as-
sessed a two-level enhancement under U.S.S.G. § 2S1.1(b)(2)(B) be-
cause Roberts was convicted of an offense under 18 U.S.C. § 1956.  
The PSI then assessed another two-level enhancement: 
Pursuant to USSG § 2S1.1(b)(3), [i]f subsection 
(b)(2)(B) applies; and the offense involved sophisti-
cated means, increase by two levels.  In this case, Am-
ber Bruey submitted false and fictious documents, in-
cluding: tax returns, 1099-MISC documents, and in-
come statements, all in support of her applications for 
the loans.  Amber Bruey also created at least one false 
and fictious business website, a two-page detailed 
portion of a lease agreement, a Google business page, 
and at least one Google review for her business, all to 
make her businesses that were subject of the applica-
tions appear legitimate.  Considering this, it appears 
the offense involved sophisticated means, and a 
two-level increase is warranted. 
The PSI then decreased the offense level by two because 
Bruey demonstrated acceptance of responsibility for the offense, 
see U.S.S.G. § 3E1.1(a), and decreased the offense level by one be-
cause Bruey assisted authorities in the prosecution of her own 
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misconduct by timely notifying them of her intention to enter a 
guilty plea, see U.S.S.G. § 3E1.1(b).  Therefore, her total offense 
level was 24.  Bruey’s criminal history category was III based on a 
criminal history score of four.  Therefore, her guidelines range was 
63 to 78 months. 
In her written objection, Bruey objected to certain intended 
loss calculations.  Bruey also objected “to the +2 enhancement [as-
sessed] under USSG § 2B1.1(b)(10)(C),” and to the statements in the 
PSI that Bruey submitted false or fictitious websites, a false and fic-
titious lease agreement, and a false and fictitious partnership agree-
ment.  Bruey argued that “the fraud perpetrated in this matter is 
entirely unremarkable and there was no effort—none—to conceal 
or disguise the expenditure of criminal proceeds.”  Bruey also said 
that “this was an entirely unsophisticated fraud followed by con-
spicuous disbursements of the fraudulent proceeds from uncon-
cealed accounts.”  Bruey went on to distinguish from other cases 
because here (1) there were no false identities, fraudulent accounts, 
fictitious entities, corporate shells, or offshore accounts; (2) the 
conduct at issue occurred over a short period; and (3) the scheme 
was not “especially complex or especially intricate,” because there 
was not a great amount of planning or concealment.  Instead, 
Bruey “submitted false loan applications and fictitious tax docu-
mentation—mere baseline offense conduct in the fraudulent acqui-
sition of financing from a lending institution.”   
In response, the PSI cited the “USSG § 2S1.1 (b)(3) commen-
tary,” which “instructs that conduct for which [the enhancement] 
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would apply typically involves the use of fictitious entities, shell 
corporations, layering transactions, or offshore financial accounts.”    
The PSI then turned to the “multi-faceted” nature of Bruey’s con-
duct, namely the fact that Bruey was both submitting fake docu-
ments to loan providers and creating public pages about her pur-
ported businesses to make them look legitimate.  The PSI also 
noted that the Brueys opened accounts at different banks that had 
no purpose other than to accept the loan proceeds.  And the PSI 
cited two cases from our sister circuits “which appear[] to have a 
similar basis for the sophisticated means enhancement.”  See United 
States v. Garcia-Pastrana, 584 F.3d 351 (1st Cir. 2009); United States 
v. Edelmann, 458 F.3d 791 (8th Cir. 2006).   
At her sentencing hearing, Bruey objected to the “sophisti-
cated means enhancement” but not to the factual accuracy of the 
PSI.  Her counsel sought to distinguish both cases relied on by the 
PSI.  Counsel argued that creating false Google business pages and 
leaving false feedback is simple, fast, and easy, and noted that the 
Brueys received funds into accounts with their names on them, un-
like other cases in which defendants used accounts that were not 
tied to their identity.   
Counsel also sought to distinguish Bruey’s case from past 
cases in this circuit, all of which concerned the sophisticated means 
enhancement under USSG § 2B1.1(b)(10)(C).  See United States v. 
Feaster, 798 F.3d 1374 (11th Cir. 2015); United States v. Ghertler, 605 
F.3d 1256 (11th Cir. 2010); United States v. Mendez, 420 F. App’x 933 
(11th Cir. 2011).  Counsel then cited the guidelines commentary for 
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the sophisticated means enhancement, which provides that it ap-
plies to “especially complex or especially intricate offense con-
duct,” § 2B1.1(b)(10)(C) cmt. n.9(B) and contended that Bruey’s 
conduct was “neither advanced nor intricate nor out of the ordi-
nary” when compared to cases from this circuit, largely because the 
conduct at issue only lasted for a short period and did not involve 
false identities, fraudulent accounts, or fictitious entities.   
In response, the government outlined what it “believe[d] 
was a sophisticated means of carrying out this fraud.”  As for PPP 
applications, Bruey “manufactured and created . . . fraudulent tax 
documents” and “false income statements.”  She also “created false 
1040s, which included false information about the gross receipts or 
sales of each business, including their returns and allowances, costs 
of goods sold, [and] gross profits.”  As for the EIDL applications, 
the government pointed out that Bruey created the Google busi-
ness pages, with falsified reviews from different fake accounts, and 
at least one fake website.  While, in the government’s eyes, “this 
[was not] some Einstein level of sophistication,” the government 
believed it “warrant[ed] consideration for whether the sophisti-
cated means enhancement would apply.”  Bruey also, the govern-
ment noted, submitted falsified documents to the SBA in response 
to an inquiry about an application.   
After hearing these arguments, the district court then over-
ruled the objection: 
Basically what I’ve heard from the defense is, taking 
the totality of this activity, breaking it up into small 
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pieces, and pointing out that it happened over a short 
period of time, and, you know, any one or two of 
these things I might agree with, but the totality of 
what occurred here rises to the level to deserve this 
enhancement, so the objection[] is overruled. 
After reconvening a few weeks later, the district court sen-
tenced Bruey to 48 months imprisonment, below the guidelines 
range of 63 to 78 months, with three years of supervised release on 
each count to be served concurrently.  The district court also im-
posed restitution in the amount of $881,659, which Bruey owes 
jointly and severally with her husband.  Bruey again objected to the 
“sentence enhancement for sophisticated means,” disagreeing with 
the district court’s decision to “impose[] the additional two levels 
for sophisticated means.”  Bruey then objected to the procedural 
and substantive reasonableness of the sentence.   
This appeal followed. 
II. 
We review a district court’s interpretation and application 
of the Guidelines de novo.  United States v. Jayyousi, 657 F.3d 1085, 
1114 (11th Cir. 2011).  We review a district court’s finding that the 
defendant used sophisticated means, a finding of fact, for clear er-
ror.  United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011).  
“Under this standard, we will not disturb a district court’s findings 
‘unless we are left with a definite and firm conviction that a mistake 
has been committed.’”  United States v. Clarke, 562 F.3d 1158, 1165 
(11th Cir. 2009) (quoting United States v. Crawford, 407 F.3d 1174, 
1177 (11th Cir. 2005)).  “So long as the basis of the trial court’s 
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decision is supported by the record and does not involve a misap-
plication of a rule of law,” we will rarely conclude that the district 
court clearly erred.  United States v. Rodriguez De Varon, 175 F.3d 
930, 945 (11th Cir. 1999). 
If a defendant, however, “induces or invites the district court 
into making an error,” United States v. Stone, 139 F.3d 822, 838 (11th 
Cir.1998), then we do not reach the merits of her argument on ap-
peal.  See United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It 
is ‘a cardinal rule of appellate review that a party may not challenge 
as error a ruling or other trial proceeding invited by that party.’”) 
(quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n. 4 (11th Cir. 
1985))).  This “doctrine stems from the common sense view that 
where a party invites the trial court to commit error, [she] cannot 
later cry foul on appeal.”  United States v. Brannan, 562 F.3d 1300, 
1306 (11th Cir. 2009). 
III. 
While both provide for a two-level increase, the enhance-
ments found in § 2B1.1(b)(10)(C) and § 2S1.1(b)(3) apply to differ-
ent conduct.  The enhancement found in § 2B1.1(b)(10)(C) applies 
when a fraudulent scheme “involved sophisticated means and the 
defendant intentionally engaged in or caused the conduct consti-
tuting sophisticated means.”  The commentary to the guidelines 
defines “sophisticated means” as “especially complex or especially 
intricate offense conduct pertaining to the execution or conceal-
ment of an offense.”  U.S.S.G. § 2B.1 cmt. n.9(B).  “Conduct such 
as hiding assets or transactions, or both, through the use of 
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fictitious entities, corporate shells, or offshore financial accounts 
. . . ordinarily indicates sophisticated means.”  Id.  Further, our 
cases provide that “[e]ach action by a defendant need not be sophis-
ticated in order to support this enhancement,” so long as “the to-
tality of the scheme was sophisticated.”  Barrington, 648 F.3d at 
1199. 
As for § 2S1.1(b)(3), it applies when a money-laundering of-
fense “involved sophisticated laundering.”  The commentary to the 
guidelines defines “sophisticated laundering” as “complex or intri-
cate offense conduct pertaining to the execution or concealment of 
the 18 U.S.C. § 1956 offense.”  U.S.S.G. § 2S1.1(b)(3) cmt. n.5(A).  
Sophisticated laundering “typically involves the use of (i) fictitious 
entities; (ii) shell corporations; (iii) two or more levels (i.e., layer-
ing) of transactions, transportation, transfers, or transmissions, in-
volving criminally derived funds that were intended to appear le-
gitimate; or (iv) offshore financial accounts.”  Id. 
The dispute here centers over which enhancement the dis-
trict court applied, and whether the district court clearly erred in 
applying it.  Bruey contends that the district court applied the so-
phisticated laundering enhancement under U.S.S.G. § 2S1.1(b)(3), 
for this was the enhancement cited in the PSI.  And because the 
district court’s focus was on the relevant factors under 
§ 2B1.1(b)(10)(C) when it overruled Bruey’s objection to this en-
hancement, the district court, according to Bruey, conflated the le-
gal standards and committed reversible error.  Bruey also argues 
that, even assuming the district court applied the right standard, 
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her conduct does not warrant the enhancement under 
§ 2S1.1(b)(3).   
The government, on the other hand, argues that the district 
court justifiably applied the enhancement under § 2B1.1(b)(10)(C).  
Even though the PSI cited § 2S1.1(b)(3), the government contends 
that the PSI’s description of Bruey’s conduct instead implicated 
§ 2B1.1(b)(10)(C).  And, according to the government, “the parties 
clearly understood what the probation office meant” given the fo-
cus in front of the district court on whether Bruey’s fraudulent con-
duct included “sophisticated means.”  The government also argues 
that Bruey’s “counsel invited any error by expressly invoking sec-
tion 2B1.1(b)(10)(C) in his objections to the PSR and at sentencing.”    
The government thus argues that the district court did not clearly 
err in finding that the “sophisticated means” enhancement applied 
under § 2B1.1(b)(10)(C), and that, in any case, Bruey forfeited any 
potential argument on this front because she did not challenge the 
district court’s application of § 2B1.1(b)(10)(C) in her initial brief.   
We conclude that Bruey is not entitled to relief.  First, Bruey 
invited the district court to consider the factors relevant to 
§ 2B1.1(b)(10)(C) in deciding whether a two-level enhancement ap-
plied.  Starting with her written objection, Bruey objected to “the 
+2 enhancement [assessed by the PSI] under USSG § 
2B1.1(b)(10)(C).”  Bruey proceeded to argue that her conduct did 
not fit what was required for an enhancement under 
§ 2B1.1(b)(10)(C) based on the commentary to the guidelines and 
our cases interpreting and applying the enhancement.  Bruey also 
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closed her written objection by arguing that “the § 2B1.1(b)(10)(C) 
enhancement . . . is entirely unsubstantiated and must be re-
moved.”  Bruey’s counsel reprised these arguments in front of the 
district court, objecting to “the sophisticated means enhance-
ment,” distinguishing cases in which we found the district court did 
not err in applying the enhancement, and informing the district 
court that Bruey’s conduct was not that complex or intricate as re-
quired by § 2B1.1(b)(10)(C) cmt. n.9(B).   
On appeal, Bruey argues instead that the district court’s con-
sideration of the very factors that she asked it to consider is cause 
for reversal.  After extending this invitation below, Bruey cannot 
now “cry foul on appeal.”  Brannan, 562 F.3d at 1306; see Stone, 139 
F.3d at 838 (“[A] defendant should not benefit from introducing er-
ror at trial with the intention of creating grounds for reversal on 
appeal.”).   
Underlying Bruey’s other argument, that her conduct does 
not justify a two-level enhancement under § 2S1.1(b)(3), is the as-
sumption that district courts are tethered to the PSI’s recommen-
dations.  But our case law provides otherwise.  As we have made 
clear, “district courts are not bound by the facts and recommenda-
tions set forth in a PSI; they may choose not to adopt the facts as 
recited in the report or not to apply the Guidelines in the proposed 
manner.”  United States v. Plasencia, 886 F.3d 1336, 1343 (11th Cir. 
2018).  This means that “with proper notice, a court may apply 
Guidelines enhancements not identified in the PSI.”  Id. 
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Here, a review of the record confirms that the district 
court’s decision to apply a two-level enhancement was based on its 
determination that Bruey’s conduct involved “sophisticated 
means” under § 2B1.1(b)(10)(C).  In front of the district court, the 
focus was on whether Bruey’s conduct involved “sophisticated 
means.”  Bruey’s counsel argued that “[t]here is no sophisticated 
means in this case,” and said the government would have to prove 
otherwise to the district court.  After Bruey made her case using 
only 
authorities 
relevant 
to 
interpreting 
and 
applying 
§ 2B1.1(b)(10)(C), the government responded by outlining what it 
believed was “a sophisticated means of carrying out this fraud,” 
and then concluded by stating that “while this isn’t some Einstein 
level of sophistication,” it did warrant “consideration for whether 
the sophisticated means enhancement would apply.”  After hearing 
arguments, the district court overruled Bruey’s objection and con-
cluded that “the totality of what occurred here rises to the level to 
deserve this enhancement.”  Bruey’s counsel later interpreted this 
as the district court “impos[ing] the additional two levels for sophis-
ticated means.”  We agree with Bruey’s trial counsel that this is the 
best reading of the record, even though Bruey’s appellate counsel 
asks us to conclude otherwise.  We also conclude that Bruey had 
notice with respect to the district court’s application of the sophis-
ticated means enhancement, given that she thoroughly litigated its 
applicability below.  We thus conclude that the district court 
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applied 
the 
sophisticated 
means 
enhancement 
under 
§ 2B1.1(b)(10)(C) and we affirm Bruey’s sentence.1 
AFFIRMED. 
 
1 Because Bruey did not challenge the district court’s application of 
§ 2B1.1(b)(10)(C) in her initial brief, we do not consider this issue.  See United 
States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (holding that a 
party forfeits an issue when it fails to raise the issue in its initial brief). 
 
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UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 
56 Forsyth Street, N.W. 
Atlanta, Georgia 30303 
David J. Smith 
Clerk of Court  
 
 
December 29, 2023  
For rules and forms visit
www.ca11.uscourts.gov
 
MEMORANDUM TO COUNSEL OR PARTIES 
 
Appeal Number:  22-12532-DD  
Case Style:  USA v. Amber Bruey 
District Court Docket No:  2:21-cr-00074-TPB-KCD-1 
 
Electronic Filing 
All counsel must file documents electronically using the Electronic Case Files ("ECF") system, 
unless exempted for good cause. Although not required, non-incarcerated pro se parties are 
permitted to use the ECF system by registering for an account at www.pacer.gov. Information 
and training materials related to electronic filing are available on the Court's website. 
Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been 
entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with 
FRAP 41(b).  
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for 
filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise 
provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is 
timely only if received in the clerk's office within the time specified in the rules. Costs are 
governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for 
attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.  
Please note that a petition for rehearing en banc must include in the Certificate of Interested 
Persons a complete list of all persons and entities listed on all certificates previously filed by 
any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be 
reheard must be included in any petition for rehearing or petition for rehearing en banc. See 
11th Cir. R. 35-5(k) and 40-1 .  
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming 
compensation for time spent on the appeal no later than 60 days after either issuance of mandate 
or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via 
the eVoucher system. Please contact the CJA Team at (404) 335-6167 or 
cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher 
system.  
USCA11 Case: 22-12532     Document: 34-2     Date Filed: 12/29/2023     Page: 1 of 2 
Case 2:21-cr-00074-TPB-K_D     Document 162     Filed 12/29/23     Page 16 of 17 PageID
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Clerk's Office Phone Numbers 
General Information: 404-335-6100  Attorney Admissions:    404-335-6122 
Case Administration: 404-335-6135  Capital Cases:       404-335-6200 
CM/ECF Help Desk: 404-335-6125  Cases Set for Oral Argument: 404-335-6141 
 
 
 
OPIN-1 Ntc of Issuance of Opinion 
 
USCA11 Case: 22-12532     Document: 34-2     Date Filed: 12/29/2023     Page: 2 of 2 
Case 2:21-cr-00074-TPB-K_D     Document 162     Filed 12/29/23     Page 17 of 17 PageID
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