United States v. Tanyo M. Fox

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14874
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00058-RBD-DAB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TANYA M. FOX,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 11, 2015)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Tanya M. Fox appeals her 240-month sentence, imposed after a jury
convicted her of 26 charges related to a tax fraud scheme, including conspiracy to
defraud the United States by filing false tax returns, 18 U.S.C. § 286; wire fraud,
18 U.S.C. §§ 2 and 1343; theft of government property, 18 U.S.C. §§ 2 and 641;
and aggravated identity theft, 18 U.S.C. §§ 2 and 1028A. On appeal, Ms. Fox
argues that the district court erred in calculating her total sentence because it failed
to state with sufficient particularity the factual basis for its application of (1) a six-
level enhancement based on the number of victims under U.S.S.G. §
2B1.1(b)(2)(C), and (2) a two-level enhancement for sophisticated means under
U.S.S.G. § 2B1.1(b)(10)(C). After review of the record and the parties’ briefs, we
affirm Ms. Fox’s sentence. We remand, however, for the limited purpose of
correcting a clerical error in the judgment.
I
A jury convicted Ms. Fox of 26 charges related to a massive tax fraud
scheme. The presentence investigation report provides the following general facts,
to which Ms. Fox did not object at sentencing. Ms. Fox owned “1 Man at Large
Accounting,” a tax service business in Orlando, Florida. She used her business to
file false tax returns. Ms. Fox also recruited several co-conspirators, including two
individuals who worked at the Orange County Health Department, to help her
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obtain lists of names, dates of birth, and Social Security numbers. She then used
this stolen personal information to file the false tax returns.
The IRS identified 3,592 false tax returns and 3,023 different victims of Ms.
Fox’s fraudulent scheme. More than 1,640 victims were 16 to 18 years old when a
fraudulent tax return was submitted using their name and Social Security number.
More than $1 million in paper refund checks were sent directly to Ms. Fox’s tax
service business, and the IRS identified 25 different bank accounts that received an
additional $3 million or more as a result of Ms. Fox’s fraudulent scheme. The
presentence investigation report stated that the IRS actually lost more than $4
million, and that Ms. Fox had intended to fraudulently obtain an additional $1.8
million, for a total tax loss of $5.8 million.
Ms. Fox had a base offense level of seven under U.S.S.G. § 2B1.1(a)(1)(A).
She received an additional 18 levels for the loss amount under § 2B1.1(b)(1)(J),
and a four-level role enhancement under § 3B1.1(a). She also received an
additional six levels under § 2B1.1(b)(2)(C), because the offense involved more
than 250 victims, and an additional two levels for a sophisticated means
enhancement under § 2B1.1(b)(10)(C). Her total offense level was therefore 37,
and she had a criminal history category of II, resulting in an advisory Guidelines
range of 235 to 293 months’ imprisonment.
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Ms. Fox objected to the six-level enhancement for the number of victims,
arguing that the IRS was the sole victim in her scheme. She also objected to the
sophisticated means enhancement because her fraud scheme was “nothing more
than a garden variety . . . identity theft income tax fraud case.” The district court
overruled the objections and sentenced Ms. Fox to 240 months’ imprisonment: 120
months for the conspiracy to defraud the United States and theft of government
property counts, 216 months concurrently on the wire fraud counts, and 24 months
consecutively on the aggravated identity theft counts. Ms. Fox did not raise
additional objections following the district court’s judgment.
At issue in this appeal are the enhancements for the number of victims and
sophisticated means. We address each one below.
II
We review claims that the district court erroneously applied the Sentencing
Guidelines under a two-pronged approach. See United States v. Williams, 527 F.3d
1235, 1247 (11th Cir. 2008). We review factual findings for clear error. See id.
And we review the district court’s application of the facts to the Guidelines de
novo. See id. at 1247-48.
But if claims are not preserved below, we review only for plain error. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “To preserve an
issue at trial for later consideration by an appellate court, one must raise an
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objection that is sufficient to apprise the trial court and the opposing party of the
particular grounds upon which appellate relief will later be sought.” United States
v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986) (“A general objection or an
objection on other grounds will not suffice.”).
A
We first review Ms. Fox’s argument regarding the district court’s six-level
enhancement for the number of victims. A district court’s factual finding on the
number of victims is reviewed for clear error. See United States v. Rodriguez, 732
F.3d 1299, 1305 (11th Cir. 2013).
At sentencing, Ms. Fox objected that the IRS was the only victim that
suffered a pecuniary loss. Ms. Fox acknowledged that, although “there were far
more than 250 individuals who were, for lack of a better word, victims of the
aggravated identity theft,” the enhancement should not apply to her case because
the government was the sole victim. The district court told the government not to
respond because Ms. Fox’s argument was foreclosed by precedent (which the
district court did not identify).
On appeal, Ms. Fox argues that the district court erred because it did not
require the government to present evidence supporting the enhancement prior to
ruling on her objection. She also argues that the district court made no explicit
factual findings supporting the enhancement. Ms. Fox, however, never objected on
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evidentiary grounds below. Nor did she object to the district court’s factual
findings. See United States v. Smith, 231 F.3d 800, 820 (11th Cir. 2000) (holding
that it was “too late now to complain in this court” after the defendant had failed to
“request more specific findings of fact by the district court”).
Even if we were to assume (without deciding) that Ms. Fox’s argument is
properly preserved, it lacks merit. Ms. Fox did not object to any of the facts in the
presentence investigation report, which stated that the IRS identified “3,203
different victims” of Ms. Fox’s tax fraud scheme, including “1,642 individual
victims” between the ages of 16 and 18. And we have held that a district court can
rely on undisputed factual statements in a presentence investigation report when it
makes findings of fact. See United States v. Wilson, 884 F.2d 1355, 1356 (11th
Cir. 1989). The Sentencing Guidelines provide for a six-level enhancement if the
crime involves more than 250 victims, and define “victim” as “any person who
sustained any part of the actual loss.” § 2B1.1 cmt. n.1. When a case involves the
theft of means of identification, a victim is also “any individual whose means of
identification was used unlawfully or without authority.” § 2B1.1 cmt. n.4(E). We
have therefore affirmed a district court’s application of the 250 or more victims
enhancement based upon an undisputed presentence investigation report that
indicated that more than 250 Social Security numbers were used to file false tax
returns and obtain fraudulent tax refunds. See United States v. Philidor, 717 F.3d
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883, 885-86 (11th Cir. 2013). Based on Philidor, we affirm the district court’s
application of the six-level enhancement for 250 or more victims.
B
Next, we review Ms. Fox’s argument that the district court erred in applying
the two-level sophisticated means enhancement because her tax fraud scheme was
a garden-variety scheme. She contends that the district court erred because it
applied the enhancement without making a specific factual finding that her tax
fraud scheme was especially sophisticated when compared to other tax fraud
schemes. The government, on appeal, argues that she failed to raise these precise
objections before the district court.
We assume (again without deciding) that Ms. Fox’s arguments are properly
preserved. As relevant here, § 2B1.1(b)(10)(C) provides a two-level enhancement
if the offense of conviction involved sophisticated means, which is defined as
“especially complex or especially intricate offense conduct pertaining to the
execution or concealment of an offense.” § 2B1.1 cmt. n.9(B) (stating that the
enhancement includes “hiding assets or transactions, or both, through the use of
fictitious entities, corporate shells, or offshore financial accounts”). The
enhancement is based on the totality of the scheme, and not each individual action
that a defendant takes. See United States v. Ghertler, 605 F.3d 1256, 1267 (11th
Cir. 2010). See also United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir.
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2007) (affirming the district court’s application of the enhancement where an
elected official used “campaign accounts and credit cards issued to other people to
conceal cash expenditures in a deliberate attempt to impede the discovery of both
the existence and the extent of his tax fraud”) (internal quotation marks omitted).
We review the district court’s factual finding for clear error. See United States v.
Dimitrovski, 782 F.3d 622, 629 (11th Cir. 2015).
The district court ruled that the enhancement was warranted because Ms.
Fox recruited others to help her, used co-conspirators who worked for a
government agency, and acquired stolen identifies and completed the fraudulent
returns using a methodology designed to avoid IRS detection—something the
district court termed “the sweet spot.” The district court agreed with the
government that it was significant that Ms. Fox had opened fictitious businesses to
funnel fraudulent tax returns into the businesses’ bank accounts, and that Ms. Fox
relied upon a number of people to help her obtain stolen identities, file false tax
returns, and cash tax return checks. Finally, the district court also found that Ms.
Fox’s scheme was not unsophisticated simply because criminals conduct similar
tax fraud schemes around the country. Although Ms. Fox argues that her scheme
was common, she does not dispute any of the underlying facts, many of which
were designed to hide her massive tax fraud scheme. On this record, the district
court did not clearly err by applying the sophisticated means enhancement.
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III
Finally, although we affirm Ms. Fox’s sentence, there is a clerical error in
the judgment. The jury convicted Ms. Fox of Count 3, which charged the crime of
wire fraud in violation of 18 U.S.C. §§ 2 and 1343. The judgment, however,
mistakenly lists 18 U.S.C. § 3 (referring to accessories after the fact), instead of 18
U.S.C. § 2 (referring to principals). “We may sua sponte raise the issue of clerical
errors in the judgment and remand with instruction that the district court correct the
errors.” United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998). On
remand, the district court shall correct the clerical error in Ms. Fox’s judgment.
AFFIRMED AND REMANDED FOR CORRECTION OF CLERICAL
ERROR.
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