United States v. Stephen E. Taylor , 323 F. App'x 806 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 20, 2009
No. 08-14897 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00111-CR-01-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN E. TAYLOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 20, 2009)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Stephen Taylor appeals his sentence of imprisonment for 72 months, which
was imposed after we vacated his sentence of 78 months of imprisonment
following his plea of guilty to wire fraud. 18 U.S.C. § 1343. Taylor argues that
the district court should not have enhanced his sentence for abusing a position of
trust, United States Sentencing Guideline § 3B1.3 (Nov. 2005), and his sentence is
unreasonable. We affirm.
We review de novo the application of the enhancement of a sentence for
abuse of a position of trust. United States v. Louis, 559 F.3d 1220, 1224 (11th Cir.
2009). “‘We review the district court’s fact findings’” regarding an abuse of trust
“‘for clear error.’” United States v. Ward, 222 F.3d 909, 911 (11th Cir. 2000)
(quoting United States v. Mills, 138 F.3d 928, 941 (11th Cir. 1998)). We review
the final sentence imposed by the district court for reasonableness. United States
v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005) (per curiam). Review for
reasonableness is a deferential standard of review for an abuse of discretion. Gall
v. United States, 128 S. Ct. 586, 597 (2007).
We reject Taylor’s argument that the district court used double counting to
enhance his sentence. Taylor’s base offense level was based on his tax evasion and
did not account for his abuse of trust. See 26 U.S.C. § 7202; U.S.S.G. § 2T1.6.
Wire fraud also does not require evidence of a fiduciary or other relationship of
private trust. See 18 U.S.C. § 1343; United States v. Bracciale, 374 F.3d 998, 1010
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(11th Cir. 2004).
The district court also did not err by finding that Taylor abused a position of
trust. Taylor, the president of 20/20 Solutions, offered to closely-held businesses
payroll and tax services and he often obtained clients through customer referrals.
The owners of those businesses relied on Taylor to calculate their tax liability and
provided money to Taylor to pay their payroll expenses and federal taxes. See
U.S.S.G. § 3B1.3 cmt. n.1 (stating that the enhancement would apply to
“embezzlement of a client’s funds by an attorney serving as a guardian”); United
States v. Williams, 527 F.3d 1235, 1250 (11th Cir. 2008) (“[W]e have explained
that § 3B1.3 applies in the fraud context where the defendant is in a fiduciary, or
other personal trust, relationship to the victim of the fraud, and “ ‘the defendant
takes advantage of the relationship to perpetrate or conceal the offense.’ ” (quoting
United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998)). Taylor
misappropriated the money to pay personal expenses and invest in real estate. By
virtue of his familiarity with the processes of the Internal Revenue Service, Taylor
provided to his clients false confirmation of payments from the Revenue Service
and told his clients that the Revenue Service had posted payments to incorrect
accounts. Taylor concealed his theft by soliciting new clients to pay the tax
obligations of existing clients.
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The district court also did not abuse its discretion by imposing a sentence
above the guideline range. The district court correctly calculated the advisory
guideline range, but concluded that range of punishment was “not adequate to
capture the seriousness of [Taylor’s] conduct.” See United States v. Irizarry, 458
F.3d 1208, 1211–12 (11th Cir. 2006) (per curiam). The district court did not abuse
its discretion when it ruled that an upward variance to 72 months of imprisonment
was necessary to account for the facts and circumstances of Taylor’s crimes, the
emotional and monetary loss suffered by Taylor’s victims, the substantial number
of victims, and Taylor’s disingenuous testimony regarding his motives to purchase
the real estate. See 18 U.S.C. § 3553(a); Gall, 128 S. Ct. at 597. Taylor’s sentence
is reasonable.
Taylor’s sentence is AFFIRMED.
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