United States v. Lineten Belizaire , 774 F.3d 711 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 13-12973
D.C. Docket No. 1:12-cr-20763-CMA-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EARNEST BALDWIN,
EARL BALDWIN,
Defendants - Appellants.
No. 13-12999
D.C. Docket No. 1:12-cr-20763-CMA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LINETEN BELIZAIRE,
Defendant - Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
(December 17, 2014)
Before ED CARNES, Chief Judge, and RESTANI, * Judge, and ROBRENO, **
District Judge.
RESTANI, Judge:
Appellants were charged with various crimes arising out of a scheme
involving the unauthorized use of personal identifying information to claim
fraudulent tax refunds, which were deposited onto debit cards opened in the names
of identity theft victims. Appellants Earnest Baldwin (“Earnest”) and Earl
Baldwin (“Earl”) were convicted by a jury. Earnest and Earl appeal their
convictions and sentences. Appellant Lineten Belizaire (“Belizaire”) pleaded
guilty, but appeals his sentence. After careful consideration and with the benefit of
oral argument, we affirm the district court in all respects.
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
**
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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BACKGROUND
In January 2012, Earnest was pulled over for making an improper left turn,
and during the course of the stop, police saw evidence of possible identity theft
and/or tax fraud in plain view. A search of the vehicle revealed mail addressed to
people unrelated to Earnest or the vehicle’s passenger, thirty-nine debit cards, a
laptop, approximately $4,000 in cash, and documents and notebooks containing
individuals’ names, dates of birth, Social Security numbers, and addresses. The
papers and notebooks contained: (1) over 1,000 individuals’ names, Social
Security numbers, and dates of birth; (2) IRS telephone numbers; (3) personal
identification numbers for online tax returns; (4) requested refund amounts,
totaling over $1 million; (5) debit card account numbers; (6) employer
identification numbers; and (7) email addresses for online tax returns. From this
evidence, investigators discovered that hundreds of fraudulent tax returns had been
filed. Approximately $1.8 million in fraudulent refunds had been requested, and
the IRS paid out approximately $840,000. Many of these refunds were loaded onto
debit cards.
In addition to the evidence found in the vehicle he was driving, Earnest also
was linked to residences where the returns were filed and was photographed by
surveillance cameras using the unauthorized debit cards. Earl was implicated in
the conspiracy because tax returns were filed from internet protocol (“IP”)
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addresses registered in his name, and he also was recorded by surveillance cameras
using unauthorized debit cards. Earnest and Earl were convicted of conspiracy to
commit fraud against the government with respect to claims in violation of 18
U.S.C. § 286, conspiracy to use unauthorized access devices in violation of 18
U.S.C. § 1029(b)(2), use of unauthorized access devices in violation of 18 U.S.C.
§ 1029(a)(2), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).
Earnest also was convicted of possessing fifteen or more unauthorized access
devices in violation of 18 U.S.C. § 1029(a)(3). Earl was sentenced to a total of 84
months’ imprisonment. Earnest was sentenced to a total of 172 months’
imprisonment.
Belizaire was implicated in recruiting people to provide addresses to receive
debit cards that would be loaded with fraudulent tax refunds, exchanging personal
identification information of victims, filing the fraudulent returns, and using debit
cards loaded with fraudulent refunds. Belizaire pleaded guilty to conspiracy to
defraud the government with respect to claims in violation of 18 U.S.C. § 286 and
aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). He was
sentenced to 105 months’ imprisonment as to the conspiracy count and was given a
consecutive sentence of 24 months’ imprisonment on the aggravated identity theft
count, for a total of 129 months’ imprisonment.
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DISCUSSION
Earnest appeals the district court’s denial of his motion to suppress certain
incriminating evidence, the district court’s denial of his motion for mistrial, the
district court’s denial of his motion for acquittal on the two conspiracy counts and
the aggravated identity theft counts, and various aspects of his sentence. Earl
challenges the district court’s denial of his motion for acquittal on the two
conspiracy counts and the aggravated identity theft counts, the district court’s
instructions to the jury on the aggravated identity theft counts, and various aspects
of his sentence. Belizaire also challenges various aspects of his sentence. We first
discuss the issues pertaining to the determination of guilt or innocence for Earl and
Earnest. We then discuss the sentencing issues as they pertain to each defendant.
I. Issues Bearing on Determination of Guilt
A. Earnest Baldwin
1. Denial of Motion to Suppress
Earnest argues that the district court erred in admitting evidence discovered
during the search of the vehicle he was driving, which occurred after he had been
arrested for presenting his brother’s driver’s license as his own to a police officer.
In reviewing a denial of a motion to suppress, we review the district court’s factual
findings for clear error and the application of the law to those facts de novo.
United States v. Yeary, 740 F.3d 569, 579 n.25 (11th Cir. 2014).
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Earnest’s argument is meritless. “If a car is readily mobile and probable
cause exists to believe it contains contraband, the Fourth Amendment . . . permits
police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938,
940 (1996). The district court found, and Earnest does not challenge, that there
was mail from the IRS not addressed to Earnest or the other passenger in the
vehicle, debit cards not in their names, and currency within plain view. This was
sufficient to establish probable cause to search the vehicle for evidence relating to
identity theft and tax fraud. To the extent that Earnest argues that the police were
required to obtain a warrant before allegedly opening a duffel bag found in the
vehicle, his arguments are unavailing. Once probable cause exists to search the
vehicle, the police may search all parts of the vehicle, and any containers therein,
where the object of the search might be found. Wyoming v. Houghton, 526 U.S.
295, 301 (1999). Earnest’s reliance on the Supreme Court’s pronouncements in
Arizona v. Gant regarding searches of automobiles incident to arrest is misplaced,
as probable cause existed to support the search of the vehicle independent of his
arrest. See 556 U.S. 332, 347 (2009) (noting that warrantless searches for evidence
relevant to crimes other than the offense of arrest would be authorized if probable
cause existed to search for evidence of those crimes).
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2. Denial of Motion for Mistrial
Earnest argues that the district court should have granted a mistrial when
Earl’s counsel suggested that Earnest had taken advantage of Earl and referred to
the biblical story of Cain and Abel. We review the refusal to grant a mistrial for
abuse of discretion. Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1285 (11th
Cir. 2000). We find no such abuse.
Earnest argues that a mistrial was “manifestly necessary,” because the
mutually antagonistic defenses of Earl and Earnest made it impossible for Earnest
to receive a fair trial. But “co-defendants do not suffer prejudice simply because
one co-defendant’s defense directly inculpates another, or it is logically impossible
for a jury to believe both co-defendants’ defenses.” United States v. Blankenship,
382 F.3d 1110, 1125 (11th Cir. 2004). Furthermore, the specific comments
complained of by Earnest were isolated and served mainly as commentary on the
government’s characterization of Earnest, rather than as an attempt by Earl to
independently inculpate Earnest. We find no abuse of discretion in the district
court’s refusal to grant Earnest a mistrial based on these statements. See id. at
1122, 1125–26 (holding that there was neither prejudice nor a need for a mistrial
despite repeated remarks by counsel for co-defendant directly targeting appellants).
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3. Sufficiency of Evidence Regarding Fraudulent Claims Conspiracy
Earnest argues that the evidence was insufficient to convict him of
conspiracy to submit fraudulent claims to the government. Earnest argues that
there was no evidence that he personally filed any fraudulent tax returns; rather,
the only evidence linking him to the conspiracy was his receipt of the conspiracy’s
proceeds. We review challenges to the sufficiency of the evidence to support a
conviction de novo, viewing the evidence and all reasonable inferences derived
therefrom in the light most favorable to the government. United States v. To, 144
F.3d 737, 743 (11th Cir. 1998).
18 U.S.C. § 286 provides that:
Whoever enters into any agreement, combination, or conspiracy to
defraud the United States, or any department or agency thereof, by
obtaining or aiding to obtain the payment or allowance of any false,
fictitious or fraudulent claim, shall be fined under this title or
imprisoned not more than ten years, or both.
To prove the conspiracy element, the government was required to show “the
existence of an agreement to achieve an unlawful objective, the defendant’s
knowing and voluntary participation in the conspiracy, and the commission of an
overt act in furtherance of it.” United States v. Gupta, 463 F.3d 1182, 1194 (11th
Cir. 2006). “[T]he extent of participation in the conspiracy or extent of knowledge
of details in the conspiracy does not matter if the proof shows the defendant knew
the essential objective of the conspiracy.” Id. (internal quotation marks omitted).
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There was overwhelming evidence of a scheme to defraud involving
coordinated activity among the individuals charged. Although there was no
testimony that Earnest personally filed a fraudulent return, other evidence
presented at trial clearly was sufficient to link Earnest to the scheme and to convict
Earnest of this charge. As already described, Earnest was pulled over while
driving a vehicle full of evidence linked to the conspiracy. Earnest’s fingerprints
were found on the computer screen and on one of the documents, and his personal
documents were mixed in with this evidence. When Earnest was pulled over, he
attempted to hide some of the mail. Earnest’s address and the employer
identification number for Earnest’s previous employer repeatedly appeared on the
fraudulent returns, and fraudulent returns were filed from an IP address registered
to a residence associated with Earnest. Earnest also was photographed making
withdrawals of the refunds using reordered cards with the same account numbers
as the cards seized during the traffic stop. A reasonable jury could conclude from
this evidence that Earnest knowingly and willfully agreed with others to submit
false tax returns.
4. Sufficiency of Evidence Regarding Access Device Fraud Conspiracy
Earnest also argues that the evidence was insufficient to convict him of
joining the access device conspiracy. 18 U.S.C. § 1029(a)(2) provides that
whoever “knowingly and with intent to defraud traffics in or uses one or more
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unauthorized access devices during any one-year period, and by such conduct
obtains anything of value aggregating $1,000 or more during that period” shall be
subjected to criminal penalties. Debit cards are “access devices.” See 18 U.S.C.
§ 1029(e)(1) (defining “access device” to include “any card . . . that can be
used . . . to obtain money, goods, services, or any other thing of value, or that can
be used to initiate a transfer of funds”); United States v. Charles, 757 F.3d 1222,
1224 (11th Cir. 2014). 18 U.S.C. § 1029(b)(2) provides criminal liability for
“[w]hoever is a party to a conspiracy of two or more persons to commit an offense
under subsection (a) of this section, if any of the parties engages in any conduct in
furtherance of such offense.” The same evidence supporting the fraudulent claims
conspiracy conviction amply supports the jury’s finding that Earnest agreed with
others to use unauthorized access devices.
5. Sufficiency of Evidence Regarding Possession of Fifteen or More
Unauthorized Access Devices
Earnest contends that the evidence was insufficient for the jury to find that
he possessed fifteen or more access devices because the debit cards were not found
on his person and there was no proof that he knew they were inside the vehicle and
had an intention to take possession and control of them. 18 U.S.C. § 1029(a)(3)
makes it a crime for anyone to “knowingly and with intent to defraud possess[]
fifteen or more devices which are counterfeit or unauthorized access devices.” A
person constructively possesses an item when he “has knowledge of the thing
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possessed coupled with the ability to maintain control over it or reduce it to his
physical possession, even though he does not have actual personal dominion.”
Aqua Log, Inc. v. Georgia, 594 F.3d 1330, 1336 (11th Cir. 2010) (internal
quotation marks omitted). Constructive possession also occurs when a person
exercises “ownership, dominion, or control over the contraband itself or dominion
or control over the premises or the vehicle in which the contraband [is] concealed.”
Id. at 1336–37.
The evidence in total showed that Earnest was aware of and had the ability
to control the incriminating evidence in the vehicle, including the debit cards.
Earnest was the driver of the vehicle, he attempted to hide pieces of mail, his
fingerprints were on the computer and one of the documents found in the vehicle,
and Earnest’s personal documents were mixed in with the loose documents
pertaining to stolen personal identity information. Furthermore, Earnest
subsequently was photographed using reordered cards containing the same account
numbers as the ones seized from the vehicle. This evidence was sufficient for the
jury to conclude that Earnest constructively possessed the unauthorized debit cards
found in the vehicle.
6. Sufficiency of the Evidence Regarding Aggravated Identity Theft
Finally, Earnest argues that the evidence was insufficient to convict him of
aggravated identity theft because there was no evidence that he knew that the
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means of identification he used belonged to real people. 18 U.S.C. § 1028A(a)(1)
provides for an additional two-year sentence for whoever “during and in relation
to” certain felonies, including 18 U.S.C. § 1029(b)(2), “knowingly transfers,
possesses, or uses, without lawful authority, a means of identification of another
person.” The prosecution is required to prove “that the defendant knew that the
means of identification at issue belonged to another person.” Flores-Figueroa v.
United States, 556 U.S. 646, 657 (2009). To convict Earnest of aggravated identity
theft, the government was required to show that Earnest knew that “J.T.” and
“A.W.,” the individuals whose names were on the cards used by Earnest, were real
people.
Personal identifying information related to J.T. was found in the vehicle
driven by Earnest on a document from the Florida Agency for Persons with
Disabilities, which supports the inference that Earnest knew that J.T. was a real
person. The jury also could consider that J.T.’s information was used as part of a
scheme to obtain a refund from the IRS, which verifies the name and Social
Security number of the person requesting the refund, in considering whether
Earnest knew that J.T. was a real person. See United States v. Gomez-Castro, 605
F.3d 1245, 1249–50 (11th Cir. 2010) (sufficient circumstantial evidence of
knowledge that identity belonged to real person when defendant had “repeatedly
and successfully tested” the underlying personal information by obtaining a
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driver’s license and benefit cards, credit and debit cards, and a passport). This was
sufficient evidence for the jury to find beyond a reasonable doubt that Earnest
knew that J.T. was a real person.
Regarding A.W., the evidence showed that A.W.’s personal information was
found in a notebook in the vehicle Earnest was driving, as was a card issued in
A.W.’s name. After that card had been seized, Earnest was photographed using a
reordered card in the name of A.W. Based on Earnest’s possession of A.W.’s
personal information and the repeated testing of A.W.’s identity, the jury
reasonably could find that Earnest knew that A.W. was a real person. See id.B. Earl Baldwin
1. Jury Instructions Regarding Aggravated Identity Theft Count
Earl contends that the district court erred in allowing the jury to disregard
discrepancies between the debit card numbers listed in Counts 11 and 16 of the
indictment and those that were presented at trial. Count 11 charged Earl with using
a debit card account number with the last four digits of “9000,” but the evidence
offered at trial listed the account as ending in “9005.” Similarly, Count 16 charged
Earl with using a card ending in “9440,” but the evidence offered at trial listed the
account as ending in “9449.” In response to a jury question about this discrepancy,
the district court, over Earl’s objection, instructed the jury as follows:
In response to your questions pertaining to Counts 11 and 16, you are
correct that the last digits of the account numbers listed are incorrect.
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You are instructed that the Court has found the last digits on the
account numbers shown in those Counts constitute scrivener’s errors
that do not affect the validity of the Superseding Indictment.
Earl argues that these instructions constructively amended the indictment,
requiring reversal.
A constructive amendment of an indictment “occurs when the essential
elements of the offense contained in the indictment are altered to broaden the
possible bases for conviction beyond what is contained in the indictment.” United
States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). This is in contrast to a
variance, where the evidence at trial differs from what is alleged in the indictment.
Id. A constructive amendment constitutes per se reversible error if the objection
has been preserved, while a defendant must show substantial prejudice to obtain
reversal because of a variance. See id. at 633. Earl’s argument rests solely on his
contention that the instructions constituted a constructive amendment of the
indictment. Nowhere in his brief does he argue that he suffered substantial
prejudice.
We agree with the district court that the discrepancies were scrivener’s
errors that the jury could disregard. See Russell v. United States, 369 U.S. 749,
770 (1962) (“[A]n indictment may not be amended except by resubmission to the
grand jury, unless the change is merely a matter of form.” (emphasis added)); cf.
Stirone v. United States, 361 U.S. 212, 217 (1960) (holding that defendant was
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deprived of Fifth Amendment right to be tried only on charges presented in
indictment when nature of alleged scheme was significantly altered and “the
addition [was] neither trivial, useless, nor innocuous” (emphasis added)). The
indictment alleged that on May 22, 2012, Earl used an account number ending in
“9000” issued to “R.E.,” and that on June 27, 2012, Earl used an account number
ending in “9440” issued to “S.T.” Evidence presented at trial showed that Earl
used a card issued in the name of Ronald Ephord on May 22 and that Earl used a
card issued in the name of Shatarra Torrey on June 27. The only discrepancy was
in the very last digit of the card numbers. Notably, neither party discerned any
discrepancy regarding the account numbers until it was raised by the jury during
deliberations. Cf. United States v. Miller, 471 U.S. 130, 135 (1985) (explaining
that notice concerns “are among the important concerns underlying the
requirement that criminal charges be set out in an indictment”).
To the extent that the district court’s instructions could be considered
anything more than a minor clerical correction, the correction is better understood
as a variance rather than a constructive amendment of the indictment. Earl relies
heavily on our decisions in Keller, 916 F.2d 628, and United States v. Narog, 372
F.3d 1243 (11th Cir. 2004), in support of his constructive amendment argument.
In Keller, the grand jury charged a conspiracy between two specific individuals,
which the government attempted to prove at trial, but the district court allowed the
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jury to convict as long as it found that the defendant agreed to commit the crime
with anyone. 916 F.2d at 636. In Narog, the grand jury charged a conspiracy to
possess pseudoephedrine “knowing . . . that the listed chemical would be used to
manufacture a controlled substance, that is, methamphetamine.” 372 F.3d at 1246.
Although the prosecution tried the case as a methamphetamine case, the district
court instructed the jury that it could convict as long as it found that the defendants
knew that the pseudoephedrine would be used to manufacture any controlled
substance. Id. at 1247. In both cases, we found an impermissible alteration of the
essential elements of the offenses charged that broadened the possible bases of
conviction. Keller, 916 F.2d at 636; Narog, 372 F.3d at 1249–50.
A potentially analogous situation to Keller and Narog in this case would be
if the district court had allowed the jury to convict Earl of aggravated identity theft
as long as it found that Earl had used any means of identification belonging to any
person. But that is not what happened. The indictment charged Earl with using
debit cards in the names of “R.E.” and “S.T.,” and those charges were proven at
trial. The district court did not allow a shift in theory regarding the essential
elements of the crime, such as allowing a conviction based on the use of a different
means of identification (e.g., Social Security number or driver’s license) or the use
of a different individual’s identity (i.e., individuals other than R.E. and S.T.). The
difference in proof offered at trial is better considered a variance from the facts
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alleged in the indictment. Because Earl does not allege any prejudice arising from
this variance, reversal is not warranted. See Keller, 916 F.2d at 633.
2. Sufficiency of Evidence Regarding Fraudulent Claims Conspiracy
Earl argues that the government failed to prove that he entered into any
agreement to present false claims to the government. Earl notes that he was absent
from the vehicle containing the incriminating evidence, no documents in the
vehicle referenced Earl, and none of the evidence seized contained Earl’s
fingerprints. Earl also notes that there was no evidence that he personally filed the
tax returns, Earnest and Belizaire also had access to the IP addresses used to file
the fraudulent returns, and Earl was observed using only two fraudulently obtained
cards on a handful of transactions. Earl further notes that neither Belizaire nor
Marckell Steward, another conspirator, named Earl as a co-conspirator in their
factual proffers when pleading guilty. Although the evidence against Earl may not
be as overwhelming as the evidence against Earnest, we conclude it is sufficient to
sustain Earl’s conviction.
First, IP records showed that at least fifty-eight fraudulent returns requesting
approximately $200,000 were submitted from the address listed on Earl’s driver’s
license. Second, several of the fraudulent returns listed this address, and a handful
of returns were sent to that address. Third, IP records showed that when Earl
moved to another address, fraudulent returns were submitted from that new
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address. Although the fact that Belizaire and Earnest lived with Earl at some point
at both locations somewhat decreases the probative value of the IP addresses, the
jury could infer that Earl was at least aware of the general contours of the scheme
based on the amount of activity taking place within the residences, the amount of
information needed to file so many returns, as reflected by the large amount of
evidence found in the vehicle, the rather small size of the residences (between
1,000 and 1,100 square feet), the continuation of the fraud at the second residence,
and the fact that the scheme was being perpetrated by family members at the joint
residences. See United States v. Brantley, 68 F.3d 1283, 1288 (11th Cir. 1995)
(noting that personal relationship and close proximity between defendant and
conspirators during commission of the offense made it more likely that the
defendant was aware of the illicit plan).
Next, Earl’s involvement with the scheme could be inferred from the facts
surrounding his use of the proceeds of the fraudulent claims conspiracy. Earl was
captured on video making an ATM withdrawal from a card issued in Ronald
Ephord’s name that had been loaded with fraudulent returns. A $20 payment with
that card was made to Earl’s auto insurance company as well. Nearly $1,500 was
loaded onto this card, and nearly all of the $1,500 was withdrawn. Ephord’s social
security number was in the notebook seized from the vehicle driven by Earnest.
Earl also was captured on video making two ATM withdrawals from a card issued
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in the name of Shatarra Torrey. Torrey’s refund had been submitted from Earl’s IP
address. Finally, Ephord’s and Torrey’s returns listed their address as 1970 NW
47th Street, and debit card accounts in their names also listed this as their address.
A debit card issued in the name of Earl listed that address as well, and there is no
other evidence in the record tying this address to other conspirators.
A reasonable juror could infer based on the entirety of the evidence
presented that Earl agreed to and intentionally participated in the fraudulent claims
conspiracy.
3. Sufficiency of Evidence Regarding Access Device Fraud Conspiracy
Earl similarly contends that the evidence was insufficient to find that he
agreed to use unauthorized access devices. Earl contends that the evidence in
support of this claim at most establishes the substantive crime of unauthorized use
of an access device. We conclude that the evidence was sufficient to support the
jury’s verdict on this count.
Evidence was presented regarding Earl’s use of two unauthorized access
devices on at least four occasions, withdrawing approximately $1,070. Based on
the evidence presented at trial, the jury reasonably could infer that Earl obtained
the cards from, or with the assistance of, one of the members of the conspiracy.
Even if Earl did not apply personally for the debit cards or file the fraudulent tax
returns that were loaded onto the devices, the jury reasonably could infer that Earl
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knew of the illicit nature of the devices, as the cards were not in his name and had
been obtained in connection with the tax refund scheme involving Earl’s family
members that had been operating out of his house. See Brantley, 68 F.3d at 1288.
This was sufficient evidence for the jury to find that Earl knowingly agreed with
other individuals to commit a violation of 18 U.S.C. § 1029(a)(2).
4. Sufficiency of Evidence Regarding Aggravated Identity Theft
Finally, Earl argues that the evidence was insufficient for the jury to find
that he knew that the access devices were in the names of real people. As
explained above, because of the personal and physical proximity to the fraudulent
claims and access device conspiracies, the jury could conclude that Earl was aware
of the nature of these conspiracies. See Brantley, 68 F.3d at 1288. The connection
between the address listed for the card issued in Earl’s name and the address listed
in the tax returns and debit card applications of Ephord and Torrey also supported
this inference. Based on Earl’s awareness that the cards were loaded with funds
from a fraudulent tax refund scheme, the jury reasonably could conclude that Earl
knew that the cards were issued in the names of real people, because the federal
government is unlikely to issue tax returns unless it has verified that the person
requesting it is a real person. See Gomez-Castro, 605 F.3d at 1249–50.
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II. Sentencing Issues
A. Earnest Baldwin
1. Sentencing Enhancements
In challenging his sentence, Earnest first asserts that the district court erred
in applying several sentencing enhancements. Specifically, Earnest challenges his
sixteen-level enhancement for an intended loss of greater than $1 million, see
U.S.S.G. § 2B1.1(b)(1)(I), his six-level enhancement for 250 or more victims, see
U.S.S.G. § 2B1.1(b)(2)(C), and his two-level enhancement for the production or
trafficking of an unauthorized access device, see U.S.S.G. § 2B1.1(b)(11)(B)(i).
i. Intended Loss
A district court’s determination of loss is reviewed for clear error. United
States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). The Sentencing
Guidelines “do not require a precise determination of loss,” and a district court
“need only make a reasonable estimate of the loss, given the available
information.” Id. Under the Sentencing Guidelines, “loss is the greater of actual
loss or intended loss,” U.S.S.G. § 2B1.1, cmt. n.3(A)(i), and intended loss is the
pecuniary harm that was intended to result from the offense, including pecuniary
harm “that would have been impossible or unlikely to occur.” Id., cmt. n.3(A)(ii).
The district court may make factual findings regarding loss based on trial evidence,
undisputed statements in the Presentence Investigation Report (“PSI”), or evidence
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presented at the sentencing hearing. United States v. Bradley, 644 F.3d 1213, 1290
(11th Cir. 2011). This evidence may include “specific circumstantial evidence,”
id., but the district court “may not speculate about the existence of a fact that
would result in a higher sentence.” Barrington, 648 F.3d at 1197.
A defendant may be held responsible for the reasonably foreseeable acts of
his co-conspirators in furtherance of the conspiracy. See United States v. Mateos,
623 F.3d 1350, 1370–71 (11th Cir. 2010). A district court must determine the
scope of the defendant’s criminal activity prior to considering all reasonably
foreseeable acts of co-conspirators. Id. at 1370. In determining the scope of “the
criminal activity the particular defendant agreed to jointly undertake,” the district
“court may consider any explicit agreement or implicit agreement fairly inferred
from the conduct of the defendant and others.” United States v. Petrie, 302 F.3d
1280, 1290 (11th Cir. 2002) (internal quotation marks omitted). If the record
otherwise supports the court’s determination, a failure to make specific findings
will not require vacating the sentence. See id. at 1290.
The district court did not clearly err in calculating the loss attributed to
Earnest to be $1,803,826. According to the PSI, the $1,803,826 represented the
intended loss of the conspiracy, as it was the total amount of fraudulent refunds
requested from the IRS, and Earnest does not dispute this figure. See Bradley, 644
F.3d at 1290. The evidence supporting the district court’s attribution of the entire
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loss to Earnest was substantial. Earnest was found with much of the stolen
identification information and his personal documents were mixed in with the
documents containing the stolen identification information. Earnest lived at the
address where many of the fraudulent returns had been filed, he had worked at the
company that was listed as the employer in many of the fraudulent returns, and his
fingerprints were on the laptop and documents seized. Finally, the government
presented still photographs showing Earnest making withdrawals of distributed tax
refunds from debit card accounts connected to the conspiracy, including reordered
debit cards with the same account numbers as the ones seized from the vehicle
after Earnest’s traffic stop. This evidence sufficiently established Earnest as a key
member who agreed to participate fully in the conspiracy. Accordingly, the district
court did not err in holding Earnest accountable for the total amount of the tax
returns fraudulently filed in connection with the conspiracy.
ii. Victim and Access Device Enhancements
Earnest also challenges the district court’s enhancements of his sentence for
the number of victims and for the production or trafficking of access devices.
Earnest argues that other co-conspirators filed the fraudulent returns using the
stolen identity information so that the debit cards could be loaded with refunds.
Similar to his challenge to the determination of the amount of loss attributable to
him, these challenges amount to a claim that he was not sufficiently involved in the
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conspiracy to be held responsible for his co-conspirators’ actions. These
challenges fail for the same reasons we have just discussed. See Mateos, 623 F.3d
at 1370–71; Petrie, 302 F.3d at 1290.
2. Restitution
Earnest next challenges the restitution amount of $500,000, arguing that the
government failed to produce evidence as to the amount of the IRS’s actual losses,
as the government did not determine the amount of distributed refunds that were
still recoverable from the debit card accounts. We review the legality of a
restitution order de novo and the underlying factual findings for clear error. United
States v. Brown, 665 F.3d 1239, 1252 (11th Cir. 2011). The amount of restitution
“must be based on the amount of loss actually caused by the defendant’s conduct.”
United States v. Liss, 265 F.3d 1220, 1231 (11th Cir. 2001). The government
bears the burden of establishing the amount of restitution by a preponderance of
the evidence. United States v. Futrell, 209 F.3d 1286, 1290 (11th Cir. 2000); see
also 18 U.S.C. § 3664(e) (“Any dispute as to the proper amount or type of
restitution shall be resolved by the court by the preponderance of the evidence.”).
Because “the determination of the restitution amount is by nature an inexact
science,” United States v. Huff, 609 F.3d 1240, 1248 (11th Cir. 2010) (internal
quotation marks omitted), where difficulties arise, a district court may accept a
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“reasonable estimate” of the loss based on the evidence presented. Futrell, 209
F.3d at 1291–92.
The district court’s estimation of the restitution amount owed by Earnest was
not clearly erroneous. Although the government was unable to establish an exact
restitution amount, its calculation was not based on speculation, but rather, on
reasonable estimates taken from facts in the record. See id. at 1292. The
restitution amount was based on the difference between the total amount of refunds
distributed during the course of the conspiracy and the total amount recoverable
from the distributed refunds. The government presented evidence that the total
amount of refunds distributed during the conspiracy was $838,000. With respect
to the total amount recoverable from the distributed refunds, the government
argued that calculating the amount would necessarily require an estimate given the
sheer number of debit card companies involved. The government asserted that
approximately one-third of the distributed tax refunds were recoverable. The one-
third estimate was based on a representative sample of the debit card accounts as
well as the testimony of Charles Torres, a special agent at the IRS. It was not clear
error to rely on the one-third estimate because there was evidence that it was a fair
estimate, and the government reduced the total amount paid out by more than one-
third, from $838,000 to $500,000.
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Furthermore, there was no error in holding Earnest jointly and severally
liable for the entire restitution amount. When more than one defendant contributes
to the loss of a victim, the district court “may make each defendant liable for
payment of the full amount of restitution or may apportion liability among the
defendants to reflect the level of contribution to the victim’s loss and economic
circumstances of each defendant.” 18 U.S.C. § 3664(h). Based on Earnest’s level
of involvement in the scheme, the district court was warranted in holding him
responsible for the entire restitution amount. The restitution order is thus affirmed.
3. Reasonableness of Sentence
Earnest’s final challenge to his sentence is that it was substantively
unreasonable because there was a “significant sentencing disparity” between his
172-month sentence and the 72-month sentence of his co-conspirator, Marckell
Steward. The reasonableness of a sentence is reviewed for abuse of discretion.
Gall v. United States, 552 U.S. 38, 41 (2007). Although Steward’s sentence was
less than one-half of Earnest’s, there were no unwarranted sentencing disparities
between them because Steward and Earnest were not similarly situated. Steward
cooperated with the government and entered into a plea agreement, but Earnest
provided no assistance and proceeded to trial. Additionally, Steward had a
criminal history category of I, whereas Earnest had a criminal history category of
III. Accordingly, they were not similarly situated, and it would have been
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improper for the district court to have compared them. See United States v.
Jayyousi, 657 F.3d 1085, 1117–18 (11th Cir. 2011) (holding that it is erroneous for
a district court to compare the sentences of a defendant who pleaded guilty with
one who did not and to compare defendants with significantly different criminal
histories).
Further, the record establishes that the district court correctly calculated and
carefully reviewed Earnest’s guideline range. See Gall, 552 U.S. at 54 (“[A correct
Guidelines range] necessarily [gives] significant weight and consideration to the
need to avoid unwarranted disparities.”). Thus, the district court gave significant
weight and consideration to the need to avoid unwarranted disparities when it
imposed Earnest’s sentence. See id. The district court also properly considered
the other relevant factors in 18 U.S.C. § 3553(a). Accordingly, under the totality
of the circumstances, Earnest has not shown that his sentence was substantively
unreasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008) (explaining that the district court need not discuss each factor explicitly and
that “[w]e will defer to the district court's judgment regarding the weight given to
the § 3553(a) factors unless the district court has made a clear error of judgment”
(internal quotation marks omitted)).
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B. Earl Baldwin
Earl raises several arguments regarding his sentence. These challenges can
be reduced to three general arguments. First, Earl contends that the district court
erred in attributing the acts of his co-conspirators to him for sentencing purposes
without making adequate findings regarding Earl’s individual role in the
conspiracy. Earl additionally asserts that his sentence was procedurally and
substantively unreasonable. Finally, Earl challenges the district court’s restitution
order, arguing that the district court erred in holding Earl jointly and severally
liable for the full amount of loss suffered by the IRS.
1. Relevant Conduct for Sentencing
Earl argues that the district court improperly attributed the entire $1,803,826
in tax refunds filed during the fraudulent claims conspiracy to him when the
evidence against him was limited to his use of two cards to withdraw
approximately $1,070. Similarly, Earl contends that the district court improperly
calculated the number of victims by imputing the actions of every co-conspirator to
him when Earl was photographed using the cards of only two individuals. Earl
also argues that the district court erred in applying a two-level enhancement for the
production or trafficking of unauthorized access devices even though there was no
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evidence that Earl personally produced or trafficked access devices. 1 These
arguments all rest on the same basic premise—that Earl should not be held
responsible for the acts of his co-conspirators because Earl’s involvement in the
conspiracies was limited.
A defendant may be held responsible for the reasonably foreseeable acts of
his co-conspirators in furtherance of the jointly undertaken criminal activity. See
Mateos, 623 F.3d at 1370–71. To determine a defendant’s accountability for the
conduct of others, a sentencing court “must first determine the scope of the
criminal activity the particular defendant agreed to jointly undertake and then
consider the conduct of others that was both in furtherance of, and reasonably
foreseeable in connection with, the criminal activity jointly undertaken by the
defendant.” Petrie, 302 F.3d at 1290 (internal quotation marks omitted). “[A]
sentencing court’s failure to make individualized findings regarding the scope of
the defendant’s activity is not grounds for vacating a sentence[, however,] if the
record supports the court’s determination with respect to the offense conduct,
including the imputation of others’ unlawful acts to the defendants.” Id. Although
the district court failed to make individualized findings regarding the scope of
1
Earl briefly argues in his reply brief that the enhancement for the production or trafficking of
any unauthorized access device should not apply to him because this conduct already is reflected
in his conviction and separate sentence for aggravated identity theft, citing U.S.S.G. § 2B1.6,
cmt. n.2. Because Earl failed to present this argument to the district court or raise it in his
opening brief, we do not consider it now. See United States v. Mathis, 767 F.3d 1264, 1277
(11th Cir. 2014).
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Earl’s involvement in the conspiracy, we affirm because the record strongly
supports imputing the acts of Earl’s co-conspirators to him.
Earl argues that the evidence established that he engaged in only a small
number of discrete transactions. As described above, however, at least fifty-eight
fraudulent returns, totaling approximately $200,000 in requested refunds, were
submitted from the address listed on Earl’s driver’s license. Several returns were
also sent to this address. When Earl moved, returns continued to be filed from his
new address. Earl also was captured by surveillance cameras on several occasions
using cards connected with the scheme, one of which was in the name of an
individual whose personal identity information was found in Earnest’s vehicle.
This evidence suggests that Earl agreed to participate fully in the broader scheme,
rather than to engage in only a small handful of withdrawals. With the scope of
Earl’s involvement so defined, there can be little doubt that the acts that the district
court attributed to Earl were in furtherance of the jointly undertaken criminal
activity and were reasonably foreseeable by Earl.
Earl’s reliance on our decision in United States v. Hunter, 323 F.3d 1314(11th Cir. 2003), is misplaced. In Hunter, we vacated the sentences of several
“runners” who were engaged in a counterfeit check cashing ring. Id. at 1316. We
held that the district court erred in holding the runners accountable for the entirety
of the loss caused by the ring without making individualized findings regarding the
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scope of the criminal activity to which they agreed. See id. at 1320. We noted that
although the defendants appeared to be aware that there was a much larger check
cashing ring, the evidence showed that the defendants cashed only a handful of
checks. See id. at 1320–21. There was no evidence suggesting that the defendants
had any interest in the overall scheme beyond the small number of transactions in
which they were involved. See id. at 1320–22. Here, a great deal of the fraudulent
activity took place at Earl’s residences, the co-conspirators included Earl’s family
members, and Earl received profits from the scheme. This evidence tying Earl to
the broader scheme is far more substantial than the evidence presented by the
prosecution in Hunter. Accordingly, we see no similar need to remand to the
district court to make further findings. See United States v. McCrimmon, 362 F.3d
725, 731–33 (11th Cir. 2004) (citing Petrie and directly examining trial record to
affirm sentence while distinguishing Hunter on the basis that defendant’s
participation in fraudulent scheme was not comparable to degree of defendants’
participation in scheme at issue in Hunter).
2. Reasonableness of Sentence
Next, Earl argues that his sentence is procedurally and substantively
unreasonable. The reasonableness of a sentence is reviewed for abuse of
discretion, Gall, 552 U.S. at 41, and the court will remand for resentencing only if
the district court “committed a clear error of judgment in weighing the § 3553(a)
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factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc).
Earl contends that his sentence is procedurally unreasonable because it was
based on improper sentencing enhancements. As previously explained, Earl’s
sentencing enhancements were proper and thus Earl has failed to show that his
sentence is procedurally unreasonable.
Earl argues that his sentence is substantively unreasonable because the
district court failed to give proper weight to the factors in 18 U.S.C. § 3553(a).2
Earl has not shown that his sentence was substantively unreasonable in the light of
the totality of the circumstances and the § 3553(a) factors. See Gonzalez, 550 F.3d
at 1324. The district court properly considered that the offense was particularly
serious, given that over 1,000 individuals’ identities, including the identities of
disabled people and high school students, were compromised, and approximately
$1,803,826 in fraudulent tax returns were requested over the course of the
conspiracy. Further, given the harm caused to the community and to the
government by the conspiracy, the need to promote respect for the law and the
2
The § 3553(a) factors include the need to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense, to deter criminal conduct, and to
protect the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). The
factors also include the nature and circumstances of the offense, the history and characteristics of
the defendant, the kinds of sentences available, the applicable guideline range, the pertinent
policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing
disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
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need to provide deterrence was high. The district court, however, also considered
Earl’s PSI, which included information relative to Earl’s personal history and
characteristics, as well as letters submitted by Earl’s family, and concluded that a
downward variance from the proper guideline range was appropriate. Relative to
Counts 1 and 3, the district court downwardly departed from the proper guideline
range of 78 to 97 months’ imprisonment and imposed concurrent sentences of 60
months. Moreover, Earl’s sentence is well below the statutory maximum of 10
years’ imprisonment for Counts 1 and 3. See 18 U.S.C. §§ 286, 1029(c)(1)(A)(i);
Gonzalez, 550 F.3d at 1324. Earl’s sentence accordingly is substantively
reasonable, and he has not satisfied his burden of proving otherwise. See
Gonzalez, 550 F.3d at 1324; United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005) (noting that “the party who challenges the sentence bears the burden of
establishing that it is unreasonable”).
3. Restitution Amount
Finally, Earl contends that the government failed to show that the $500,000
in loss for restitution purposes was attributable to him. Pursuant to 18 U.S.C.
§ 3664(h):
If the court finds that more than 1 defendant has contributed to the
loss of a victim, the court may make each defendant liable for
payment of the full amount of restitution or may apportion liability
among the defendants to reflect the level of contribution to the
victim’s loss and economic circumstances of each defendant.
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In the light of the evidence described above regarding Earl’s culpability for
purposes of calculating his sentence pursuant to the Sentencing Guidelines,
we perceive no error in the district court’s decision to make each defendant,
including Earl, liable for payment of the full amount of restitution owed to
the IRS.
C. Lineten Belizaire
1. Application of Sentencing Guidelines
First, Belizaire argues that the district court erred in applying the U.S.S.G.
§ 2B1.1 guidelines. He maintains that the U.S.S.G § 2T guidelines are more
applicable and would have resulted in a substantially shorter sentencing range than
a calculation under § 2B1.1. We review the interpretation of the Sentencing
Guidelines and its application to facts de novo. See Barrington, 648 F.3d at 1194–
95.
After determining the offense of conviction, the court turns to the
Sentencing Guideline’s Statutory Index to determine the applicable offense
guideline section. United States v. Saavedra, 148 F.3d 1311, 1315 (11th Cir.
1998). Once that guideline is selected, “relevant conduct is considered in
determining various sentencing considerations within that guideline, including the
base offense level, specific offense characteristics, and any cross-references.” Id.
at 1317.
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Belizaire pleaded guilty to violating 18 U.S.C. § 286. The Statutory Index
provides that U.S.S.G. § 2B1.1 applies when the statute of conviction is 18 U.S.C.
§ 286. See U.S.S.G. app. A. Section 2B1.1(c)(3) of the Sentencing Guidelines,
however, provides that if a defendant was convicted under a general fraud statute
and the conduct described in the count of conviction “establishes an offense
specifically covered by another guideline in Chapter Two,” the court should apply
the other guideline. The commentary further explains that if the conviction is for
“an offense involving fraudulent conduct that is more aptly covered by another
guideline,” the other guideline should be used. See U.S.S.G § 2B1.1, cmt. n.16.
Belizaire relies on United States v. Brisson, 448 F.3d 989, 992 (7th Cir.
2006), which in turn relied on the Third Circuit’s opinion in United States v.
Barnes, 324 F.3d 135, 139–40 (3rd Cir. 2003) and the Ninth Circuit’s opinion in
United States v. Aragbaye, 234 F.3d 1101, 1105–06 (9th Cir. 2000), for the
proposition that the tax guidelines (U.S.S.G. § 2T) should apply to false claims for
tax refunds. Those courts found that the § 2T guidelines may be appropriate when
the “offense conduct was at heart a scheme to file fraudulent tax returns and thus
could be considered on par with tax fraud.” Brisson, 448 F.3d at 992 (quoting
Aragbaye, 234 F.3d at 1105).
Here, the heart of Belizaire’s scheme was not simply to file fraudulent tax
returns, impede the IRS from collecting taxes, or counsel others to falsify their own
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returns, like the crimes in Brisson, Barnes, and Aragbaye. Rather, Belizaire
unlawfully enriched himself by stealing identities, defrauding the victims by filing
false returns, and obtaining and using fraudulent debit cards in the victims’ names
to receive the fraudulent returns. Although the conduct involved filing tax returns,
Belizaire’s goal was to enrich himself by defrauding the government with entirely
fictitious tax returns, and thus the § 2B1.1 guidelines more aptly fit the specifics of
the crimes committed by Belizaire. 3 Cf. United States v. Anderson, 326 F.3d
1319, 1332 (11th Cir. 2003) (applying general fraud guideline over more specific
bid-rigging guideline, pursuant to cross reference in U.S.S.G. § 2X, because bid
rigging was “merely a means to an end,” namely defrauding the government).
Belizaire further argues that if either section could cover the offense
conduct, the district court should have applied the § 2T guidelines pursuant to the
rule of lenity. Belizaire’s argument is unpersuasive. To invoke the rule of lenity,
the court “must conclude that there is a grievous ambiguity or uncertainty in the
statute.” Muscarello v. United States, 524 U.S. 125, 138–39 (1998) (internal
quotation marks omitted). There is no “grievous ambiguity or uncertainty in the
statute” that Belizaire can point to which would allow him to invoke this rule.
Assuming the offense conduct is covered by both guidelines, as Belizaire urges,
3
The government also argues that 18 U.S.C. § 286 does not constitute the type of general fraud
statute that would implicate the use of the cross reference in § 2B1.1(c)(3). We need not decide
this issue because we find that Belizaire’s offense conduct is more aptly covered by § 2B1.1.
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the guidelines provide a clear solution. Under U.S.S.G. § 1B1.1, “where two or
more guideline provisions appear equally applicable, but the guidelines authorize
the application of only one such provision, use the provision that results in the
greater offense level.” U.S.S.G. § 1B1.1, cmt. n.5.
The district court thus did not err in applying U.S.S.G. § 2B1.1, the general
fraud guideline, to determine Belizaire’s offense level.
2. Intended Loss
The district court attributed the entirety of the $1,803,826 in requested tax
refunds to Belizaire, resulting in a sixteen-level increase based on an intended loss
of greater than $1 million. U.S.S.G. § 2B1.1(b)(1)(I). Belizaire argues that he
should not be responsible for the fraudulent returns filed between January 22,
2012, and March 2, 2012, because he was incarcerated during that time and, as a
result, could not participate in “some of the most crucial fraudulent activities” of
the conspiracy.
A defendant may be “responsible for the losses resulting from the reasonably
foreseeable acts of co-conspirators in furtherance of the conspiracy.” Mateos, 623
F.3d at 1370. “[N]either arrest nor incarceration automatically triggers withdrawal
from a conspiracy.” United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir.
1991). It was foreseeable that the other members of the conspiracy would continue
to operate despite Belizaire’s absence. Belizaire, therefore, cannot claim that he
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ceased being part of the conspiracy by virtue of his arrest. Further, upon his
release, Belizaire continued to withdraw various sums of cash using the fraudulent
accounts. These withdrawals demonstrate that he never ceased to be a part of the
overall conspiracy and is responsible for the losses incurred during his
incarceration.
3. Managerial Role Enhancement
Belizaire argues that the district court erred in applying a sentencing
enhancement for his supervisory role in the conspiracy. He contends that the
enhancement is not applicable because he was merely a “middleman” and did not
engage in recruitment of individuals to the conspiracy.
We review the district court’s decision to enhance a defendant’s offense
level based on his role in the offense for clear error. United States v. Rendon, 354
F.3d 1320, 1331 (11th Cir. 2003). It is the government’s burden to prove “by a
preponderance of the evidence that the defendant had an aggravating role in the
offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).
The Sentencing Guidelines provide for a three-level enhancement to the base
offense level “[i]f the defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(b). To apply the enhancement “the
defendant must have been the organizer, leader, manager, or supervisor of one or
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more other participants.” U.S.S.G. § 3B1.1, cmt. n.2. “A ‘participant’ is a person
who is criminally responsible for the commission of the offense, but need not have
been convicted.” Id., cmt. n.l. Some factors the court may consider include:
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
Id., cmt. n.4; see United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004)
(noting that the district court could consider the factors in determining the nature of
the defendants role). Belizaire does not dispute that the “criminal activity involved
five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).
Rather, he disputes his role as a manager.
Belizaire’s factual proffer accompanying his guilty plea indicates that he
acted as a manager. Belizaire received names and social security numbers from
co-conspirators for the purpose of submitting fraudulent returns. Belizaire also
recruited other unindicted co-conspirators to obtain addresses of residences where
the debit cards could be received. Further, Belizaire was deeply involved in the
conspiracy. He sent and received victims’ personal identification information used
to file the fraudulent tax returns as well as debit card account numbers that were to
be used for receiving the victims’ tax refunds. Many of the fraudulent tax returns
were also submitted from an IP address registered in Belizaire’s name. Finally,
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Belizaire made numerous withdrawals of the distributed returns with the debit
cards. Taking the factors prescribed by the statute into account, the district court
did not clearly err in finding that Belizaire was a manager or supervisor of one or
more participants.
4. Number of Victims
Belizaire contends that the government failed to prove that there were more
than 250 victims because it did not establish precisely how many tax returns
contributed to the actual loss. We review the district court’s finding of the number
of victims for clear error. See United States v. Philidor, 717 F.3d 883, 885 (11th
Cir. 2013).
The Sentencing Guidelines provide for a six-level enhancement to a base
offense level if the crime involves 250 or more victims. U.S.S.G.
§ 2B1.1(b)(2)(C). For purposes of § 2B1.1, “‘[v]ictim’ means . . . any person who
sustained any part of the actual loss” attributed to the crime. U.S.S.G. § 2B1.1,
cmt. n.1. In cases involving means of identification, like Social Security numbers,
“victim” also includes “any individual whose means of identification was used
unlawfully or without authority.” Id., cmt. n.4(E). A means of identification must
be of an “actual (i.e., not fictitious) individual.” Id., cmt. n.1.
The district court determined that there were 250 or more victims affected
by the conspiracy. The undisputed facts in the Second PSI indicate that notebooks
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seized from the vehicle driven by Earnest contained approximately 1,300
individuals’ names, dates of birth, and Social Security numbers. The Second PSI
indicated that the IRS, through the notebooks, discovered over 500 tax returns filed
with stolen identity information for the 2010 and 2011 tax years. The district court
reasonably could infer, “based on common sense and ordinary human experience,
that the [IRS] verifies identifying information, like Social Security numbers, before
issuing a tax refund.” Philidor, 717 F.3d at 885–86. Further, “the fact that the
[IRS] paid the refunds . . . indicates that the Social Security numbers used to
procure those refunds [were] associated with real people.” Id. at 886. The district
court properly concluded that the identifying information used to file 500-plus tax
returns matched actual individuals. Therefore, the determination that more than
250 victims’ identities were used unlawfully or without their authority in
connection with the conspiracy was not clearly erroneous.
5. Restitution Amount
Belizaire argues that because the government failed to make any specific
showing regarding the exact dollar amount of loss sustained by the IRS, the
restitution amount of $500,000 was clearly erroneous. This is the same argument
raised by Earnest, and we reject it for the same reasons.
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CONCLUSION
For the foregoing reasons, the judgments of conviction and sentences of the
appellants are
AFFIRMED.
42