United States v. Camilla Vanessa Gonzalez

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11817
Non-Argument Calendar
________________________
D.C. Docket No. 0:13-cr-60249-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAMILLA VANESSA GONZALEZ,
PATRICIA NATASHA ALCIME,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(June 26, 2015)
Before HULL, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
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A jury convicted Defendants Camilla Vanessa Gonzalez and Patricia
Natasha Alcime of conspiracy to defraud the government with respect to claims, in
violation of 18 U.S.C. § 286, and multiple substantive counts of theft of public
money, in violation of 18 U.S.C. § 641, and aggravated identity theft, in violation
of 18 U.S.C. § 1028A, all stemming from a tax fraud scheme. On appeal,
Defendant Gonzalez challenges her convictions on sufficiency of the evidence
grounds. Both Defendant Gonzalez and Defendant Alcime appeal their sentences.
After review, we affirm Defendant Gonzalez’s convictions and total sentence. We
affirm Defendant Alcime’s prison sentences, but vacate the district court’s order of
restitution and remand for the district court to recalculate the amount of restitution
Defendant Alcime must pay.
I. FACTUAL BACKGROUND
A. Trial Evidence
According to the trial evidence, Defendants Gonzalez and Alcime operated
Luxury Tax, a tax preparation business, with Gonzalez as the President and Alcime
as the Vice President. In 2010, the Defendants each applied for and obtained
preparer tax identification numbers (“PTIN”), which are required to prepare a tax
return. Defendant Alcime also obtained an electronic filing identification number
(“EFIN”), which is required to transmit a tax return to the Internal Revenue
Service (“IRS”). For the 2010 tax year, Luxury Tax submitted 298 tax returns
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using Defendant Gonzalez’s PTIN and 92 tax returns using Defendant Alcime’s
PTIN. All of these 2010 tax returns were electronically filed using Defendant
Alcime’s EFIN.
Almost all of the tax returns filed using the Defendants’ PTINs reported
similar amounts of wages (generally between $6,000 and $7,000), listed the
taxpayer’s occupation as “household help” or “self-employed,” and claimed the
same tax credits, such as the earned income tax credit, the making work pay tax
credit, and the federal fuels tax credit. Most of the returns also claimed refunds of
between $2,000 and $3,000.
Defendant Alcime’s returns sought a total of $166,946 in refunds, and the
IRS paid out $163,391. Defendant Gonzalez’s returns sought a total of $648,733
in refunds, and the IRS paid out $1,283,858. In total, Luxury Tax filed returns
using the Defendants’ PTINs seeking refunds of $815,679, and IRS paid out
$1,447,249.
The reason the IRS paid out twice what Defendant Gonzalez’s returns
sought was largely because two tax returns each seeking refunds of $2,073 were
filed in the name of Max Kidd and Allen Cramer, both of whom had already made
large estimated quarterly tax payments to the IRS. When the IRS received the
fraudulent returns, the IRS refunded the quarterly payments. In the case of Kidd,
the IRS refunded $570,573, and in the case of Cramer, the IRS refunded $139,673.
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According to the IRS’s investigation, all of the resulting refunds were paid
to Luxury Tax’s two bank accounts or onto debit cards controlled exclusively by
Defendants Gonzalez and Alcime. Bank records indicated that none of the refund
money was sent to the persons listed on the returns, but instead was used by
Gonzalez and Alcime for personal expenses, such as shopping, travel, cosmetic
surgery, and paying off a student loan. For example, from August 2010 until
November 2011, the IRS deposited approximately $728,00 into Luxury Tax’s
JPMorgan account, and $727,000 was spent. At trial, five taxpayers whose names
and social security numbers were used on the Luxury Tax 2010 tax returns,
including Kidd and Cramer, testified that they were not Luxury Tax clients, did not
authorize the Defendants to file tax returns on their behalf, and never received any
of the refunds the IRS paid into Luxury Tax’s bank accounts.
Shortly after the IRS deposited the $570,573 refund from Kidd’s purported
tax return into Luxury Tax’s SunTrust bank account, SunTrust froze the funds due
to suspicious activity. Because Defendant Gonzalez managed to spend some of the
funds, the Suntrust account balance was approximately $511,000 when it was
frozen. After the account was frozen, Defendant Gonzalez and another woman
went to the bank and asked an account manager for help in accessing funds in the
account. As a result of this unusually large deposit, SunTrust contacted law
enforcement, which led to the investigation into the Defendants’ tax filings.
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After a two-day trial, the jury convicted the Defendants as charged in the
indictment except for two counts (Counts 8 and 12), which were dismissed at the
close of the government’s case. Specifically, the jury convicted both Defendants
of conspiracy to defraud the government by filing false federal tax returns (Count
1). In addition, the jury convicted Defendant Gonzalez of two counts of theft of
public money (Counts 2 and 3) and two counts of aggravated identity theft (Counts
4 and 5), and convicted Defendant Alcime of three counts of theft of public money
(Counts 6, 7, and 9) and three counts of aggravated identity theft (Counts 10, 11,
and 13). 1
B. Presentence Investigation Reports
According to the presentence investigation reports (“PSI”) for both
Defendants, 522 tax returns were filed in 2010 using the EFIN registered to Luxury
Tax. Approximately 621 tax returns were filed in 2010 using Gonzalez’s PTIN,
299 of those returns using Luxury Tax’s EFIN, and the other 322 returns using an
EFIN registered to a company called Tax Time. Alcime’s PTIN was used to file
92 tax returns, all of which were filed using Luxury Tax’s EFIN. The 621 returns
prepared by Gonzalez claimed $1,738,639 in refunds, and the IRS refunded
1
The fraudulent tax returns filed on behalf of Kidd and Cramer using Defendant
Gonzalez’s PTIN were the basis of Defendant Gonzalez’s two theft of public money counts
(Counts 2 and 3) and two aggravated identity theft counts (Counts 4 and 5). The fraudulent tax
returns filed on behalf of the other three trial witnesses—Francisco Abreu, Lisa Whyte, and
Karen Morea—using Defendant Alcime’s PTIN were the basis of Defendant Alcime’s three
counts of theft of public money (Counts 6, 7, and 9) and three counts of aggravated identity theft
(Counts 10, 11, and 13).
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$1,858,386. The 92 returns prepared by Alcime claimed $222,652 in refunds, of
which $203,831 were paid.
The PSIs recommended increasing both Defendants’ offense levels by 16
levels, pursuant to U.S.S.G. § 2B1.1(b)(1)(I), because the loss amount was more
than $1,000,000, but less than $2,500,000. The PSIs also recommended a 6-level
increase because the offenses involved 250 or more victims, pursuant to U.S.S.G.
§ 2B1.1(b)(2)(C).
The PSI stated that the total loss to the IRS was $2,062,217, and
recommended that restitution under the Mandatory Victim Restitution Act be
awarded in this amount. This amount consisted of the $1,858,386 in refunds the
IRS paid as a result of Gonzalez’s 621 returns, including the Tax Time returns, and
the $203,831 in refunds the IRS paid as a result of Alcime’s 92 returns.
C. Gonzalez’s Sentencing
Gonzalez and Alcime were sentenced on the same day, with Gonzalez’s
sentencing occurring first. Gonzalez objected to the PSI’s imposition of offense-
level increases based on the loss amount and the number of victims, maintaining
that she was innocent and therefore not responsible for the offense conduct.
Gonzalez testified, stating that her employees prepared and filed the fraudulent tax
returns at Luxury Tax using her PTIN and that she was unaware of the fraud and
thought the money she was withdrawing from Luxury Tax’s bank accounts
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constituted the fees paid for preparing the tax returns. Gonzalez claimed that
another tax preparation service called Tax Time also had used her PTIN without
her permission to file tax returns.
The government responded that Gonzalez was not claiming that the loss
amount was inaccurate, only that she was not guilty, but the jury had already
established her guilt. The government presented testimony from IRS Special
Agent Roberto Munoz, who investigated the tax fraud scheme and testified at trial.
Agent Munoz testified, among other things, that after the jury’s verdict, he
ascertained that 165 taxpayers had informed the IRS that they were victims of
identity theft when the Defendants submitted fraudulent tax returns purportedly on
their behalf. In evaluating those 165 tax returns, Agent Munoz determined that 41
returns were prepared by Alcime and 124 returns were prepared by Gonzalez. As
to Alcime’s 41 fraudulent tax returns, the attempted fraud amount was $94,569,
and the actual fraud amount was $82,521. As to Gonzalez’s 124 fraudulent tax
returns, the attempted fraud amount was $290,801, and the actual fraud amount
was $951,075, partly consisting of refunds for taxpayers’ advance payments of
anticipated tax liability. The total actual fraud loss was $1,033,596, and no funds
from Luxury Tax’s bank accounts went to any of the 165 taxpayers on whose
behalf it filed returns. The government also submitted two spreadsheets reflecting
the victims and the loss amounts as to Gonzalez and Alcime. Agent Munoz stated
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that the spreadsheet for Gonzalez listed “[a]ll returns prepared by Ms. Gonzalez
that have been confirmed as identity theft.”
In mitigation, Gonzalez argued that she had no prior offenses and had never
served time in prison. As such, a short sentence would deter her from returning to
criminal behavior and would protect the public.
Gonzalez personally addressed the district court, noting that she had two
small children and had maintained a regular job as a supervisor for the last two
years since Luxury Tax’s mistakes. Gonzalez also stated that she had no training
in tax preparation, and had never intended for her business to operate as a tax fraud
scheme, but should have supervised her employees more closely. When the
district court asked why other people would use her PTIN to prepare fraudulent tax
returns when she was the one who received the refunds, Gonzalez responded, “I
have no idea.” After confirming with Gonzalez that she paid her tax preparers only
$50 to $100 per return, the district court stated that the pattern in Luxury Tax’s
filed returns “just jumps out at you that this was fraudulent tax filing.” The district
court stated that Gonzalez was claiming she was duped by her tax preparers, but
she “got all the money.”
When Gonzalez continued to insist that she was unaware of the fraud while
it was going on, the district court asked the government how much money went
into Luxury Tax’s bank accounts. The government responded, “[i]n just tax year
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2012 and only associated with the Luxury Tax filings, not even talking about the
Tax Time fraudulent filings [that also used Gonzalez’s PTIN], . . . . $1.8 million
was paid out and sent into these accounts that were controlled only by Ms.
Gonzalez and Ms. Alcime.”
The district court also confirmed with the government that it was seeking
$2,062,217 in restitution. When the district court asked Gonzalez’s counsel his
position on restitution, he responded, “I don’t believe that I can stand here and
agree to any restitution amount because of the position that Ms. Gonzalez has
taken.”
The district court sustained Gonzalez’s objection to the number of victims,
but overruled her objection to the loss amount. As to the number of victims, the
district court found, based on Agent Munoz’s testimony, that the government had
proved 50 or more victims, not the 250 or more victims stated in the PSI, and that
only a 4-level increase under U.S.S.G. § 2B1.1(b)(2)(B) applied, and not the 6-
level increase under § 2B1.1(b)(2)(C). As to the loss amount, the district court
found that the amount of actual or intended loss was more than $1 million. Based
on these findings, the district court calculated a total offense level of 26, which,
with a criminal history category of I, yielded an advisory guidelines range of 63 to
78 months in prison.
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In considering the 18 U.S.C. § 3553(a) factors, the district court stated that
the circumstantial evidence was overwhelming that Gonzalez and Alcime had
orchestrated the fraud and that it did not make sense for someone else to use
Gonzalez’s PTIN to commit the tax fraud, but not recoup the profits. The district
court imposed concurrent 78-month sentences for the conspiracy offense in Count
1 and the theft of public money offenses in Counts 2 and 3 and concurrent 24-
month sentences for the aggravated identity theft offenses in Counts 4 and 5, which
were required to run consecutive to Counts 1, 2, and 3, for a total sentence of 102
months. The district court also ordered Gonzalez to pay $1.8 million in restitution,
in joint and several liability with Alcime.
D. Alcime’s Sentencing
A few minutes after Gonzalez was sentenced, Alcime’s sentencing began.
Alcime’s attorney advised that, based on the district court’s ruling during
Gonzalez’s sentencing, Alcime no longer objected to the number of victims
involved in the offenses. The district court stated that, consistent with Gonzalez’s
sentencing, it would reduce the number of victims to 50, which would result in an
advisory guidelines range of 63 to 78 months for Alcime.
Defense counsel clarified, however, that Alcime continued to object to the
loss amount and the restitution amount. In response, the district court stated,
“What I did with Ms. Gonzalez a few minutes ago was I ordered restitution in the
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amount of $1.8 million, which was the testimony [of] how much money went into
the two accounts.” The district court further explained that “if $1.8 million went
into the account, then more than $1 million of that was fraudulent, and the actual
loss would be more than $1 million.” Alcime’s counsel stated that he was present
and had heard the district court’s ruling on Gonzalez’s loss amount objection, but
that Alcime’s argument was that she never intended to defraud the government and
was innocent. Defense counsel also pointed out that Alcime never received the $1
million actual loss amount.
The district court noted that Alcime was not present when Agent Munoz
testified and summarized Agent Munoz’s testimony for Alcime’s benefit, as
follows:
For the reasons I set forth in Ms. Gonzalez’s sentencing, I will
go ahead and overrule the objection. Ms. Alcime wasn’t here, so for
her benefit, I will indicate that the government put on the Detective to
testify that the IRS has confirmed 175 of the tax payers have indicated
that they didn’t file those returns and they were fraudulent returns.
$1.8 million went into the accounts from the IRS. The actual
loss to the IRS, which is unusual in this case, is more than the
intended loss because of a couple of big windfall returns that were
utilized because they had made quarterly payments, and the IRS just
gave back all the money that these poor people had paid in quarterly
in anticipation of it being used to offset taxes they were going to owe
on April 15.
They just gave all their money back, and it went directly into
the accounts controlled by Ms. Alcime and by Ms. Gonzalez.
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The district court asked if Agent Munoz should return to the stand to testify again.
Defense counsel responded that Alcime did not take the same position as
Gonzalez, was very apologetic and “was not going to waste the Court’s time by
bringing [back] the lead agent in this case to testify before the Court.” Alcime
argued, and the government agreed, that she was less culpable than Gonzalez
because she had filed fewer returns and had withdrawn less funds from the two
bank accounts.
The district court stated that, although it had originally planned to impose a
sentence at the top of the advisory guidelines range, it was persuaded that she
“deserve[d] a little bit of a break.” After considering the § 3553(a) factors, the
district court imposed concurrent 72-month sentences for the conspiracy offense in
Count 1 and the theft of public money offenses in Counts 6, 7, and 9, and
concurrent 24-month sentences for the aggravated identity theft offenses in Counts
10 and 11, to run consecutive to Counts 1, 6, 7, and 9, for a total sentence of 96
months. The district court also ordered Alcime to pay $1.8 million in restitution, in
joint and several liability with Gonzalez.
II. GONZALEZ’S CONVICTIONS
In this appeal, only Gonzalez challenges her convictions on sufficiency of
the evidence grounds.
A. Sufficiency of the Evidence
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We review “the sufficiency of the evidence de novo, viewing all the
evidence in the light most favorable to the government and drawing all reasonable
inferences and credibility choices in favor of the jury’s verdict.” United States v.
Sterling, 738 F.3d 228, 234 (11th Cir. 2013), cert. denied, 134 S. Ct. 2682 (2014)
(quotation marks omitted). “Accordingly, the evidence will be sufficient to
support a conviction if a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” United States v. Jiminez, 564 F.3d
1280, 1284-85 (11th Cir. 2009) (quotation marks omitted).
B. Elements of Gonzalez’s Offenses
We review the elements that the government must prove to sustain
Gonzalez’s convictions.
To sustain a conviction for conspiracy to defraud the government with
respect to claims, under 18 U.S.C. § 286, the government must prove “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) (quotation marks omitted). The unlawful objective of a § 286
conspiracy is to defraud the federal government “by obtaining or aiding to obtain
the payment or allowance of any false, fictitious or fraudulent claim.” 18 U.S.C.
§ 286.
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To convict a defendant under 18 U.S.C. § 641 of theft of public government,
the government must prove that (1) the money or property belonged to the
government; (2) the defendant fraudulently appropriated the money or property to
his own use or the use of others; and (3) the defendant did so knowingly and
willfully with the intent either temporarily or permanently to deprive the owner of
the use of the money or property. United States v. McRee, 7 F.3d 976, 980 (11th
Cir. 1993) (en banc).
To prove aggravated identity theft under 18 U.S.C. § 1028A(a)(1), the
evidence must show that the defendant: (1) knowingly transferred, possessed, or
used; (2) a means of identification of another person; (3) without lawful authority;
(4) during and in relation to a felony enumerated in 18 U.S.C. § 1028A(c). See 18
U.S.C. § 1028A(a)(1); United States v. Barrington, 648 F.3d 1178, 1192 (11th Cir.
2011). Theft of government money, in violation of 18 U.S.C. § 641, is one of the
offenses listed in § 1028A(c). 18 U.S.C. § 1028A(c)(1). “[T]he term ‘means of
identification’ means any name or number that may be used, alone or in
conjunction with any other information, to identify a specific individual.” Id.
§ 1028(d)(7). This includes any name, social security number, or date of birth. Id.
§ 1028(d)(7)(A).
C. Trial Evidence
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Here, the evidence presented at trial was sufficient to support Gonzalez’s
convictions for conspiracy to defraud the government, theft of public money, and
aggravated identity theft. Specifically, the government presented evidence from
which a reasonable jury could find that: (1) Gonzalez ran Luxury Tax along with
her co-defendant Alcime; (2) as part of Luxury Tax’s business for the 2010 tax
year, Gonzalez submitted 298 tax returns using her PTIN, including returns for
Kidd and Cramer, and Alcime submitted 92 tax returns using her PTIN, including
returns for Abreu, Whyte, and Morea; 2 (3) the resulting IRS refunds were paid into
Luxury Tax’s bank accounts controlled exclusively by Gonzalez and Alcime; and
(4) none of the refund money was sent to the taxpayers listed on the returns, but
instead was used by Gonzalez and Alcime for their own personal expenses.
As to all three types of offenses, the jury was permitted to infer that
Gonzalez prepared the returns, or knew and intended them to be prepared, from the
use of her PTIN and her receiving and using the proceeds. Moreover, the
testimony of Kidd, Cramer, Abreu, Whyte, and Morea that they never authorized
or dealt with Gonzalez or her company, together with Gonzalez’s use of her PTIN
and her taking substantial proceeds of that fraud, was sufficient to allow the jury to
infer that Gonzalez knowingly transferred their identifying information and
2
The PSI refers to Gonzalez having filed 621 fraudulent tax returns. Some of the returns
were for Luxury Tax and others were for another tax preparation business, Tax Time. The
charges and the trial evidence concerned only the Defendants’ activities at Luxury Tax.
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intended to defraud the IRS. Accordingly, we affirm Gonzalez’s convictions for
conspiracy to defraud the government, theft of public money, and aggravated
identity theft. 3
III. SENTENCES
A. Loss Calculation
Both Defendants argue that the government failed to prove that the loss
amount exceeded $1 million, and thus the district court erred in applying the 16-
level increase in U.S.S.G. § 2B1.1(b)(1)(I) when it calculated their respective
advisory guidelines ranges. In particular, the Defendants argue that the district
court erroneously included in the loss amount the approximately $710,000 in
refunded prepayments of estimated taxes made by Kidd and Cramer because those
amounts were not asked for on the two fraudulent returns and were not reasonably
foreseeable to the Defendants and because Luxury Tax’s SunTrust account was
3
Within the portion of her brief challenging the sufficiency of the evidence, Gonzalez
contends that the district court’s jury charge on the aggravated identity theft offense contributed
to the jury’s conviction on that charge. Although Gonzalez acknowledges that the district court
gave the pattern charge, Gonzalez argues, without citing supporting authority, that the jury was
required to find as an element of the offense that she knew the identifying information belonged
to a real person. To the extent Gonzalez intends to raise a substantive challenge to the jury
charge, her passing reference, buried in the middle of her sufficiency challenge and without
citations to supporting authority, is insufficient to preserve this issue for appellate review. See
United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003); Fed. R. App. P. 28(a)(8)(A).
In any event, the district court correctly instructed the jury that the government must prove that
the defendant knew that the means of identification belonged to an actual, not a fictitious, person.
Gonzalez points to no authority requiring the charge to refer to this requirement as a separate
“element.”
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frozen before all of those amounts could be withdrawn. 4 Approximately $511,000
was left in the frozen bank account out of the $710,000. 5
Under § 2B1.1(b)(1)(I), if the loss attributable to the defendant exceeds
$1,000,000, but is less than $2,500,000, the defendant is subject to a 16-level
increase in his offense level. U.S.S.G. § 2B1.1(b)(1)(I). The Guidelines define
“loss” as “the greater of actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A).
Actual loss is the “reasonably foreseeable pecuniary harm that resulted from the
offense,” while intended loss is the “pecuniary harm that was intended to result
from the offense,” even if the harm was “impossible or unlikely to occur.” Id.
§ 2B1.1 cmt. n.3(A)(i)-(ii). “Reasonably foreseeable pecuniary harm” means
pecuniary harm that the defendant knew or, under the circumstances, reasonably
should have known, was a potential result of the offense. Id. § 2B1.1 cmt.
n.3(A)(iv). A participant in a conspiracy may be held responsible for the losses
resulting from the reasonably foreseeable acts of co-conspirators in furtherance of
4
We ordinarily review the district court’s determination of loss under the Sentencing
Guidelines for clear error. United States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005). Where
the defendant raises a new legal ground for her objection on appeal, however, we review only for
plain error. United States v. Massey, 443 F.3d 814, 818-19 (11th Cir. 2006). Here, the
Defendants challenged the loss calculation based on their claimed innocence of the charged
offenses, not on the ground asserted here that the actual loss amount, which was greater than the
intended loss amount, was not reasonably foreseeable to them. Thus, our review is for plain
error.
5
The government later sought forfeiture of the remaining funds in this bank account.
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the conspiracy. United States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir.)
(quotation marks omitted), cert. denied, 135 S. Ct. 310 (2014).
While “estimates are permissible, courts must not speculate concerning the
existence of a fact which would permit a more severe sentence under the
guidelines.” United States v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011)
(quotation marks omitted). “Where the amount of loss the defendant purportedly
caused is at issue, the Government must support[ ] its loss calculation with reliable
and specific evidence.” Id. (brackets in original, quotation marks omitted). In
addition, “a district court must make factual findings sufficient to support the
government’s claim of the amount of fraud loss attributed to a defendant in a PSI.”
Gupta, 463 F.3d at 1200. The failure to make specific factual findings constitutes
clear error. See United States v. Medina, 485 F.3d 1291, 1304-05 (11th Cir. 2007).
We find no error, much less plain error, in the district court’s determination
of the loss amount attributable to Gonzalez and Alcime. According to Agent
Munoz’s testimony at Gonzalez’s sentencing hearing, which neither Defendant has
ever disputed, there was a total actual loss of $1,033,596 to the IRS as a result of
the Defendants’ tax fraud scheme at Luxury Tax. This $1,033,596 amount
included only the refunds: (1) that the IRS paid into Luxury Tax’s bank accounts
for returns Defendants Gonzalez and Alcime filed using Luxury Tax’s EIFN, and
(2) that the IRS was able to confirm with the listed taxpayers were the result of
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identity theft and fraud. The district court could reasonably rely upon this
testimony to find an actual loss in excess of $1 million.
Moreover, the district court did not err in holding the Defendants liable for
losses resulting from the refunds of Kidd’s and Cramer’s estimated tax payments.
Although the government did not show that these large prepaid taxes were
necessarily intended losses, it was not error to count the whole refund amounts as
actual losses because, as professional tax preparers, the Defendants knew, or
reasonably should have known, that some of the individuals whose identifications
they used might have paid estimated taxes, and that the return of those prepaid
funds by the IRS was a potential result of their fraud. See U.S.S.G. § 2B1.1, cmt.
n.3(A)(iv). In addition, the fact that the account was frozen before the Defendants
were able to withdraw all of the refunds these fraudulent tax returns produced does
not change the loss amount calculation for their offense conduct. The full refunds
were deposited into their bank account, and actual loss is measured by the resulting
harm, not the benefit accrued to the defendant. See id. § 2B1.1 cmt. n.3(A)(i).
For the first time on appeal, Defendant Alcime raises an additional
argument—that the district court failed to make individualized findings as to the
scope of the conspiracy and the losses attributable to each Defendant’s conduct
before holding her responsible for the entire loss amount. See Medina, 485 F.3d at
1304-05 (involving sentencing at which the district court “made no factual findings
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as to the amount of loss” and this Court concluded that it could not “determine
what factual basis was used to reach” the loss amount).
This is not a case where the district court made no underlying findings at all.
Rather, Defendant Alcime argues the findings were not sufficiently particularized
as to her individual conduct. We need not resolve this issue because Defendant
Alcime has not shown that any error affected the outcome of the proceeding. See
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (stating that
under plain error review, the defendant must show that the sentencing error
affected her substantial rights, which generally means she must show that the error
affected the outcome of the sentencing). It is clear from the record that, in making
its loss determination, the district court relied upon Agent Munoz’s undisputed
testimony connecting each Defendant’s acts in furtherance of the tax fraud
conspiracy to specific loss amounts. Moreover, the district court found at
Gonzalez’s sentencing that the two Defendants orchestrated the fraud scheme
together and then noted during Alcime’s sentencing that the two women seemed
“joined at the hip doing everything together.” The trial evidence supports the
district court’s finding, establishing that the two women operated Luxury Tax
together as President and Vice President, obtained PTINs to prepare tax returns,
filed fraudulent tax returns using their PTINs, directed the refunds into the same
two accounts, and then used the funds for their own personal expenses. Under the
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circumstances of this case, the refunds obtained by Defendant Gonzalez’s
fraudulent tax returns were reasonably foreseeable to Defendant Alcime, and the
district court did not plainly err in attributing the entire loss amount to Alcime.
See United States v. Mateos, 623 F.3d 1350, 1370-71 (11th Cir. 2010) (explaining
that the district court may attribute the entire loss amount in a conspiracy to the
defendant if the losses resulting from the co-conspirator’s acts were reasonably
foreseeable to the defendant).
For these reasons, the district court did not err in applying the 16-level
increase under U.S.S.G. § 2B1.1(b)(1)(I) with respect to either Defendant.
B. Number of Victims
The Defendants also argue that the government failed to prove that their
offenses involved at least 50 victims and thus the district court erred when it
increased their offense levels on that basis.6
A defendant’s offense level is increased by 4 levels if the offense involved
50 or more victims. U.S.S.G. § 2B1.1(b)(2)(B). For purposes of § 2B1.1, “victim”
means “any person who sustained any part of the actual loss” attributed to the
crime. Id. § 2B1.1 cmt. n.1. “[I]n a case involving means of identification,” the
term “victim” also includes “any individual whose means of identification was
6
We review the district court’s finding of the number of victims for clear error. United
States v. Baldwin, 774 F.3d 711, 735 (11th Cir. 2014). Whether a person is a victim, however, is
a legal conclusion we review de novo. United States v. Foley, 508 F.3d 627, 632 (11th Cir.
2007).
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used unlawfully or without authority.” Id. § 2B1.1 cmt. n.4(E). “Means of
identification has the meaning given that term in 18 U.S.C. § 1028(d)(7) . . .” Id.§ 2B1.1 cmt. n.1. 7
The district court did not clearly err when it found that the Defendants’
offenses involved 50 or more victims and applied § 2B1.1’s 4-level increase.
Although Defendants on appeal complain that only five taxpayer-victims testified
at trial, the district court did not rely on this trial evidence to apply the victim
enhancement. Instead, the district court based its finding that there were 165
victims on Agent Munoz’s testimony at sentencing that 165 individuals had
advised the IRS that Luxury Tax had used their personal information without
authorization to file fraudulent tax returns. The district court’s finding was not
based solely upon the two spreadsheets Munoz prepared and that were introduced
at the sentencing, but on Munoz’s corroborating testimony that the IRS had
independently confirmed that these 165 individuals were victims of the
Defendants’ tax fraud scheme. The district court’s finding as to the number of
victims was supported by sufficient evidence.
7
Because the evidence so clearly supports the victim enhancement, we need not address
the government’s argument that we are precluded from reviewing the 50-victim issue at all as to
Defendant Alcime because her counsel affirmatively withdrew her objection to the victim
enhancement when the district court indicated it would decrease the number of victims from 250
to 50, thereby lowering the offense-level increase from 6 levels to 4 levels. See United States v.
Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005) (explaining that the doctrine of invited error
applies when a party induces the district court into committing the alleged error by expressly
waiving an objection).
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C. Reasonableness of Gonzalez’s Prison Sentences on Counts 1, 2, and 3
Defendant Gonzalez argues that her concurrent 78-month sentences on
Counts 1, 2, and 3, at the high end of the advisory guidelines range, are
substantively unreasonable.8
We review the reasonableness of a sentence under the deferential abuse of
discretion standard using a two-step process. United States v. Pugh, 515 F.3d
1179, 1190 (11th Cir. 2008). We look first at whether the district court committed
any significant procedural error and then at whether the sentence is substantively
unreasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the
circumstances.9 Id. Because the abuse of discretion standard “allows a range of
choice for the district court,” we will vacate a sentence only if “left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) 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, 1189-90 (11th Cir. 2010) (en banc) (quotation marks
omitted). The party challenging the sentence has the burden of showing that it is
8
Defendant Gonzalez does not challenge the reasonableness of her concurrent 24-month
sentences on Counts 4 and 5, as the district court was statutorily required to impose two-year
prison terms on these counts and to run them consecutive to the sentences on Counts 1, 2, and 3.
See 18 U.S.C. § 1028A(a)(1), (b).
9
Apart from the two guidelines calculation issues already addressed, Gonzalez does not
identify any other procedural error at her sentencing.
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unreasonable in light of the record and the § 3553(a) factors. United States v.
Dougherty, 754 F.3d 1353, 1358 (11th Cir. 2014). 10
Here, Defendant Gonzalez has not carried her burden to show her concurrent
78-month sentences on Counts 1, 2, and 3 are substantively unreasonable. The
district court found that Gonzalez orchestrated a fraud scheme that defrauded the
government of more than $1 million and stole the identifications of, and thus
victimized, hundreds of taxpayers. Gonzalez’s sentences were well below the
statutory maximum of ten years, see 18 U.S.C. §§ 286, 641, and within the
advisory guidelines range of 63 to 78 months, both indications of reasonableness.
See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008); United States v.
Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). Although Gonzalez’s guidelines
range was driven in large measure by a loss amount greater than she may have
originally intended due to the two windfall refunds from Kidd’s and Cramer’s
prepaid estimated taxes, Gonzalez promptly spent some of that money before the
account was frozen and then went to the bank to try to access the remaining funds.
Under the totality of the circumstances, we cannot say the district court’s decision
10
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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to impose concurrent 78-month sentences on each of these three counts was an
abuse of discretion.
D. Defendant Alcime’s $1.8 Million Restitution Award
Defendant Alcime argues that the district court clearly erred in ordering her
to pay $1.8 million in restitution. The government agrees that the $1.8 million is
mistaken but submits that the record supports $1,447,249 and asks for a remand for
that amount. As discussed below, Alcime makes a different argument. 11
Under the Mandatory Victim Restitution Act (“MVRA”), a district court
must order a defendant convicted of an offense against property to make restitution
to the victim. 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). The amount of restitution
must be the full amount of the victim’s loss, as determined by the court. Id.
§ 3664(f)(1)(A). Furthermore, a restitution award must be based on the amount of
the loss actually caused by the defendant’s conduct. United States v. Huff, 609
F.3d 1240, 1247 (11th Cir. 2010).
Alcime challenges the restitution award, arguing that the IRS’s deposits of
refunds into Luxury Tax’s bank accounts were not acts committed in furtherance
of the conspiracy. The relevant acts of the conspiracy, however, were Alcime’s
11
The district court’s determination of the amount of restitution is a factual finding that
we review for clear error. United States v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010). Because
Alcime did not challenge the restitution order in the district court, we review for plain error.
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and Gonzalez’s submission of the fraudulent tax returns to the IRS, not the IRS’s
subsequent deposit of the refunds.
Alcime also argues that the amount of restitution should have been reduced
by the amount forfeited to the government. Under the MVRA, however, the
district court has no authority to offset the amount of restitution owed to the IRS by
the amount of funds later forfeited to the government. United States v. Joseph, 743
F.3d 1350, 1353-54 (11th Cir. 2014).
Finally, the district court did not plainly err in exercising its discretion to
hold Alcime liable for the total loss amount from her fraudulent conspiracy scheme
with Gonzalez. When more than one defendant has contributed to the loss of a
victim, the district court has discretion to make each defendant liable for payment
of the full restitution amount. See United States v. McGarity, 669 F.3d 1218, 1270
(11th Cir. 2012); 18 U.S.C. § 3664(h). Alcime contends she should be liable for a
smaller amount of the loss in proportion to her relatively minor role in the
conspiracy. Alcime was the Vice President of Luxury Tax and one of only two
people authorized to obtain funds from Luxury Tax’s JPMorgan bank account. All
of the fraudulent returns were filed using the EFIN she obtained in her name, and
much of the money in the JPMorgan account was spent by her debit cards on
personal purchases. The record shows that Alcime substantially participated in the
fraud.
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As the government acknowledges, however, there is no evidence in the
record that the actual loss caused by the Defendants’ conduct was $1.8 million.
The $1.8 million amount mistakenly used by the district court included losses
resulting from refunds that Defendant Gonzalez filed in connection with another
tax preparation business, Tax Time, conduct that was not part of the charged
Luxury Tax conspiracy. The district court’s mistake is understandable given that
the PSI included the Tax Time returns in its restitution recommendation and the
prosecutor repeated that number during Gonzalez’s sentencing.
Because the district court clearly erred in ordering Alcime to pay $1.8
million in restitution, we vacate the district court’s restitution order and remand for
the limited purpose of allowing the district court to recalculate the restitution
amount in Alcime’s case. In that regard, the district court may consider the trial
evidence that the IRS paid a total of $1,447,249 as a result of the tax returns
Defendants Alcime and Gonzales filed at Luxury Tax using Alcime’s EFIN and
Agent Munoz’s testimony at Gonzalez’s sentencing that the total actual fraud loss
resulting from the Luxury Tax conspiracy was $1,033,596. It is up to the district
court to make the relevant fact findings about restitution in the first instance.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
27