USCA11 Case: 22-11069 Document: 56-1 Date Filed: 08/09/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11069
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED J. PICKETT, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cr-80230-RLR-1
____________________
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2 Opinion of the Court 22-11069
Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRANCH, Cir-
cuit Judges.
PER CURIAM:
Fred Pickett, Jr., appeals his sentence of 97 months of impris-
onment for 22 counts of aiding and assisting in the preparation of
false tax returns.
26 U.S.C. § 7206(2). Pickett challenges the en-
hancement of his sentence by four levels for being an organizer or
leader of a criminal activity that involved five or more participants
or was otherwise extensive. United States Sentencing Guidelines
Manual § 3B1.1(a) (Nov. 2021). We affirm.
Pickett argues that the district court erred by applying the
aggravating-role enhancement because there were no other “par-
ticipants” in his crimes. He raises this argument for the first time
on appeal, so our review is for plain error. See United States v.
Ramirez-Flores,
743 F.3d 816, 822 (11th Cir. 2014). Under that stand-
ard, Pickett must prove an error that is plain and that affects his
substantial rights. See
id.
The district court did not err by finding that Pickett’s fraud-
ulent tax scheme involved at least one other “participant.” See
U.S.S.G. § 3B1.1 cmt. n.1. Pickett owned a tax preparation business
with multiple locations. He employed at least ten individuals, in-
cluding Brandhi Shaw, the mother of one of his children. Shaw
worked as a tax preparer for Pickett from about 2012 through 2017.
Jalisa Steele, Pickett’s step-daughter, testified that Pickett prepared
about half of the tax returns, and Shaw and another tax preparer,
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22-11069 Opinion of the Court 3
Leslie Bouie, prepared the other half. Pickett directed his employ-
ees, including Shaw, to use only his preparer-identification num-
ber, so it was impossible to identify which tax returns he prepared.
Over half of the returns filed with Pickett’s identification number
in 2015 and 2016 listed Schedule C business losses, and between 99
and 100 percent sought tax refunds. Agent Betsy Charlton for the
Internal Revenue Service testified that, based on her investigation
of Pickett, the Service expanded its investigation to include Shaw.
Agent Charlton testified at sentencing that she interviewed several
of Pickett’s customers who had false tax returns. Some customers
reported that Pickett’s employees prepared their tax returns, and at
least one customer identified Shaw as the preparer.
After Agent Charlton began her investigation and Pickett
was alerted to false items on several Schedule C forms, Pickett did
not fire Shaw or Bouie. Shaw instead began working at a new tax
preparation business, Premier Financial. Pickett introduced, over
the government’s objection, a copy of the government’s civil com-
plaint to enjoin Shaw from preparing false tax returns based on her
allegedly fraudulent activity at Premier. Those allegations against
Shaw were nearly identical to the charges against Pickett, which
included reporting false Schedule C business losses and falsely
claiming earned income, fuel, and education tax credits. The record
supports the finding by the district court that Shaw had been a
knowing participant in Pickett’s criminal scheme. See United States
v. Walker,
490 F.3d 1282, 1301 (11th Cir. 2007) (“[E]mployees are
participants for purposes of the supervisory-role enhancement
when they knowingly further the fraudulent scheme.”). Because
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4 Opinion of the Court 22-11069
there was at least one “participant,” and Pickett does not dispute
that he was an “organizer or leader” or that his criminal activity
was “otherwise extensive,” the district court did not plainly err by
applying this enhancement. See
id. (“[F]or a criminal activity to
qualify as ‘otherwise extensive,’ there must [] be at least one other
participant.”); U.S.S.G. § 3B1.1 cmt. n.2.
Pickett argues that the government should be estopped
from arguing on appeal that Shaw was criminally responsible for
Pickett’s scheme because it argued at sentencing that Shaw’s mis-
conduct had not been “proven” yet. We disagree. The govern-
ment’s position on appeal is not inconsistent with its position in the
district court. See United States v. Campa,
459 F.3d 1121, 1152 (11th
Cir. 2006) (en banc). Pickett argued at sentencing that, despite his
and Shaw’s conduct being “equally culpable” and “identical,” Shaw
had not been criminally charged. The government responded to
this argument by explaining that any wrongdoing on Shaw’s part
was attributable to “the training she was able to receive” from
Pickett. And the government made clear at trial that “Shaw’s day
in court may yet well come,” so it did not absolve her of any crimes.
We AFFIRM Pickett’s judgment of conviction and sentence.
