United States v. Joanne Edwards ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOANNE EDWARDS,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Lynchburg. Norman K. Moon, Senior District Judge. (6:17-cr-00003-NKM-2)
Submitted: November 30, 2018 Decided: December 11, 2018
Before WILKINSON, NIEMEYER, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles M. Henter, HENTERLAW, PLC, Charlottesville, Virginia, for Appellant. Richard
E. Zuckerman, Principal Deputy Assistant Attorney General, S. Robert Lyons, Chief, Tax
Enforcement Policy Section, Stanley J. Okula, Jr., Alexander P. Robbins, Yael T. Epstein,
Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joanne Edwards appeals the 18-month sentence of imprisonment imposed by the
district court after she pleaded guilty to conspiracy to structure currency transactions, in
violation of 18 U.S.C. § 371 (2012); 31 U.S.C. § 5324(a) (2012), and willfully filing a
materially false federal tax return, in violation of 26 U.S.C. § 7206(1) (2012). She contends
that the district court improperly applied the sophisticated means sentencing enhancement,
see U.S. Sentencing Guidelines Manual § 2T1.1(b)(2) (2016), and that her sentence is
substantively unreasonable because the district court refused to consider her argument that
she was religiously obligated to submit to her husband’s commands. We affirm.
As an initial matter, the Government argues that Edwards has waived her challenge
to the application of the sophisticated means enhancement. “A waiver is the intentional
relinquishment or abandonment of a known right.” United States v. Robinson, 744 F.3d
293, 298 (4th Cir. 2014) (internal quotation marks omitted). “A party who identifies an
issue, and then explicitly withdraws it, has waived the issue.” Id. (internal quotation marks
omitted). A claim that is waived is not reviewable on appeal. Id. In contrast, forfeiture,
or “the failure to make the timely assertion of a right,” is reviewable for plain error. Id. To
prevail on plain-error review, an appellant must show that there was an error, the error was
“clear or obvious,” and the error affected the appellant’s substantial rights. United States
v. Oceanic Illsabe Ltd., 889 F.3d 178, 201 (4th Cir. 2018). Even if an appellant satisfies all
three requirements, we should exercise our discretion to correct the error only if “the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.(internal quotation marks omitted). We need not decide whether Edwards has waived
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appellate review of this claim because we conclude that Edwards’ claim fails, in any event,
under plain-error review.
“Sophisticated means” under USSG § 2T1.1(b)(2) “means especially complex or
especially intricate offense conduct pertaining to the execution or concealment of an
offense. Conduct such as hiding assets or transactions, or both, through the use of fictitious
entities, corporate shells, or offshore financial accounts ordinarily indicates sophisticated
means.” USSG § 2T1.1 cmt. n.5 (emphasis omitted). We have explained that “the average
criminal tax fraud involves some concealment; ‘sophisticated’ tax fraud must require
more.” United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012) (ellipsis and internal
quotation marks omitted). However, the level of concealment necessary to support a
sophisticated means enhancement is not high—a “court need only find the presence of
efforts at concealment that go beyond (not necessarily far beyond) the concealment
inherent in tax fraud.” Id. (ellipsis and internal quotation marks omitted).
Here, Edwards contends that the sophisticated means enhancement requires
“especially complex” methods of concealment beyond merely forming fake charities.
(Appellant’s Br. at 14). Jinwright, however, expressly rejected such a high bar, requiring
only concealment more than that inherent in ordinary tax fraud. We conclude that the use
of fake charities as shell entities is sufficient to support application of the sophisticated
means enhancement. Thus, the district court did not err, much less plainly err, in applying
the sophisticated means enhancement to Edwards’ conduct.
Next, “[w]e ‘review all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.’” United
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States v. Blue, 877 F.3d 513, 517 (4th Cir. 2017) (quoting Gall v. United States, 552 U.S.
38, 41 (2007)). This review entails appellate consideration of both the procedural and
substantive reasonableness of the sentence. Gall, 552 U.S. at 51. We presume that a
sentence imposed within a properly calculated Sentencing Guidelines range is
substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
“Such a presumption can only be rebutted by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) [(2012)] factors.” Id.Here, Edwards contends that her sentence is substantively unreasonable because the
district court did not fully consider the nature and circumstances of the offense and
Edwards’ history and characteristics. Specifically, she contends that the court believed it
could not consider her argument that she was religiously required to submit to her husband
in determining a sentence. After reviewing the record, however, we conclude that the
district court did indeed consider Edwards’ argument. We further conclude that Edwards
has not rebutted the presumption that her within-Guidelines sentence is substantively
reasonable or otherwise shown that the district court abused its discretion in imposing an
18-month sentence. See Louthian, 756 F.3d at 306.
Accordingly, we affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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