United States v. Callista Chiwocha ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0214n.06
No. 17-2161
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Apr 26, 2018
DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee,
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
CALLISTA SUZENA CHIWOCHA, )
) OPINION
Defendant-Appellant. )
Before: MOORE, THAPAR, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Defendant Callista Chiwocha appeals her sentence for
conspiracy to defraud the government by false claims on the grounds that the sentencing court
misapplied several enhancements under USSG §§ 3A1.1 and 3B1.1. For the reasons explained
below, we affirm her sentence.
I
Chiwocha and members of her immediate family established multiple income-tax
preparation companies. These companies employed a number of “recruiters” and “canvassers”
to visit homeless shelters, community soup kitchens, bus stations, and other locations to find
indigent individuals who had not filed tax returns. These individuals were told that they would
receive money from an “Obama program” for the poor if they would provide identifying
information such as their names, addresses, and social security numbers. This information was
then used to file fraudulent tax returns, most of the money from which was kept by Chiwocha
and her family members.
No. 17-2161, United States v. Chiwocha
Chiwocha pleaded guilty to one count of conspiring to make fraudulent claims against the
United States, in violation of 18 U.S.C. § 286. Over her objection, the district court adjusted her
Guidelines range under USSG §§ 3A1.1(b)(1), for Chiwocha’s knowing that a victim was
vulnerable; 3A1.1(b)(2), for there being a large number of vulnerable victims; and 3B1.1(a), for
Chiwocha’s acting as an organizer or leader of the criminal activity.
Chiwocha now appeals, arguing that her sentence is procedurally unreasonable because
the district court erred in applying the above-mentioned enhancements.
II
When a defendant appeals a district court’s determination that a sentencing enhancement
applies, we review the lower court’s legal interpretation of the Guidelines de novo and may
overturn its factual findings only if they are clearly erroneous. See United States v. Stubblefield,
682 F.3d 502, 510 (6th Cir. 2012).
USSG § 3A1.1(b)(1) applies if “the defendant knew or should have known that a victim
of the offense was a vulnerable victim,” which is defined as “a person . . . who is unusually
vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible
to the criminal conduct.” USSG § 3A1.1, comment. (n.2) (emphasis added). Because the
determination that many of Chiwocha’s victims were vulnerable was a factual one, we review for
clear error. United States v. Bolze, 444 F. App’x 889, 892 (6th Cir. 2012).
The district court did not clearly err in its finding. We have recently found that where a
defendant “targeted low-income neighborhoods” as part of a scheme seeking personal
information to fraudulently apply for unemployment benefits, the victims’ financial troubles
made them “unusually vulnerable” to offers of financial assistance. United States v. Nash,
648 F. App’x 589, 591 (6th Cir. 2016). As the district court correctly noted, “a person . . . in dire
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No. 17-2161, United States v. Chiwocha
straits is somebody who is more likely to part with personal information in exchange for a small
consideration,” and it was not clear error for the district court to find that Chiwocha’s victims
were particularly susceptible to her scheme.
Chiwocha admits that if we find that she is subject to an enhancement for knowing that
her victims were vulnerable, it follows that she is subject to an enhancement for having
victimized a large number of vulnerable people. We do, and she is.
Finally, Chiwocha argues that she is not subject to USSG § 3B1.1(a), which applies if the
defendant “was an organizer or leader” of the criminal activity. Because the applicability of this
enhancement “depends on a number of factual nuances that a district court is better positioned to
evaluate,” we subject the district court’s determination to a “deferential” standard of review.
United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013).
Chiwocha’s position is that, because of the patriarchal nature of the Chiwocha family, her
husband was the only true leader of the fraudulent scheme. “But [t]here can, of course, be more
than one person who qualifies as a leader or organizer of a criminal association or conspiracy.”
United States v. Tupper, 644 F. App’x 585, 588 (6th Cir. 2016) (alteration in original) (citations
omitted). Given that Chiwocha recruited individuals to canvass for victims, hired employees to
complete the fraudulent tax returns, oversaw the daily operation of those employees, received the
lion’s share of the ill-gotten proceeds into an account she controlled, and was the one person
involved in the scheme with an accounting degree and tax-preparation experience, we defer to
the district court’s determination that she was an organizer or leader of the scheme and reject
Chiwocha’s argument that her husband was the sole leader.
III
For the foregoing reasons, we AFFIRM.
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