United States v. Linda Ann Borden , 269 F. App'x 903 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 13, 2008
THOMAS K. KAHN
No. 07-12821
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00181-CR-ORL-18-31-DA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINDA ANN BORDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 13, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Linda Ann Borden appeals her conviction and sentence for wilfully aiding
and assisting in the preparation and presentation of false tax returns in violation of
26 U.S.C. § 7206(2) and 18 U.S.C. § 2. She contends that the evidence presented
at trial was insufficient to support her conviction on count fourteen of the
indictment on the ground that the government did not present evidence showing
that the disputed tax return was filed with the Internal Revenue Service.1 She also
contends that the district court erred by: (1) incorrectly calculating the tax loss
under United States Sentencing Guidelines § 2T4.1 (Nov. 2006); and (2) finding
that she was subject to an aggravating role enhancement pursuant to U.S.S.G. §
3B1.1(c).
I.
We review de novo sufficiency of the evidence claims. United States v.
Anderson, 289 F.3d 1321, 1325 (11th Cir. 2002). This “standard of review is
stacked in the government’s favor.” United States v. Moore, 504 F.3d 1345, 1348
(11th Cir. 2007); see also United States v. Robertson, 493 F.3d 1322, 1329 (11th
Cir. 2007) (“We view the evidence in the light most favorable to the government
and resolve all reasonable inferences and credibility evaluations in favor of the
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Borden was convicted of twenty-seven counts of wilfully aiding and assisting in the
preparation and presentation of false tax returns in violation of 26 U.S.C. § 7206(2) and
18 U.S.C. § 2. In her brief, she only raises issues regarding count fourteen. Accordingly, she
has abandoned any arguments with respect to the twenty-six other counts. See Harris v. Plastics
Mfg. Co., 617 F.2d 438, 440 (5th Cir. 1980).
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jury’s verdict. The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt,
provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt.” (internal citations and quotation marks omitted)).
The evidence is sufficient to support Borden’s conviction on count fourteen
of the indictment. At trial, one of the government’s witnesses testified that the
amended tax return was prepared by Borden and was mailed to the IRS. Although
that witnesses testified that he contacted the IRS and asked it to disregard the
amended return, the fact that the return was mailed to and received by the IRS was
enough for the jury to conclude that it was “filed.” In addition, a person may be
convicted of assisting in the preparation and presentation of fraudulent tax returns
under 26 U.S.C. § 7206(2) if that person either prepares or presents the relevant
return. See 26 U.S.C. § 7206(2) (“Any person who . . . [w]illfully aids or assists in
. . . the preparation or presentation under . . . the internal revenue laws, of a return,
. . . which is fraudulent or is false as to any material matter, . . . shall be guilty of a
felony . . . .”). Borden does not dispute her involvement in the preparation of the
return in question. Accordingly, the evidence is sufficient to sustain her
conviction.
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II.
We review a district court’s factual determination of offense level
enhancement related to tax offenses for clear error. United States v. Paradies,
98 F.3d 1266, 1292 (11th Cir. 1996). Likewise, a district court’s determination of
a defendant’s role in the offense is reviewed for clear error. United States v. Mesa,
247 F.3d 1165, 1168 (2001). Clear error is present only if we are “left with a
definite and firm conviction that a mistake has been committed” by the district
court. United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (citation
omitted).
The sentencing guidelines define tax loss as the total amount of loss that was
the object of the offense. See U.S.S.G. § 2T1.1(c). Where the tax loss to the
government falls between $2,500,000.00 and $7,000,000.00, the offense level is
24. U.S.S.G. § 2T4.1(J). The district court must support its loss calculation with
reliable and specific evidence. See United States v. Renick, 273 F.3d 1009, 1025
(11th Cir. 2001). Nevertheless, because loss calculations under the Guidelines are
often not calculable “with precision,” we have noted that a sentencing court need
only “make a reasonable estimate of the loss, given the available information.” See
United States v. Orton, 73 F.3d 331, 335 (11th Cir. 1996).
The district court did not clearly err in calculating the tax loss as $4,000,000.
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At the sentence proceeding, the government presented documentary evidence and
testimony showing that the tax loss was at least $4,378,463.00.
The district court also did not clearly err by enhancing Borden’s sentence
under U.S.S.G. § 3B1.1(c). Under that guideline, a defendant’s offense level is
increased by two levels if she was the organizer, leader, manager, or supervisor in
any criminal activity involving at least one, but fewer than five participants. “A
‘participant’ is a person who is criminally responsible for the commission of the
offense, but need not have been convicted.” U.S.S.G. § 3B1.1 cmt. n.1. The
commentary further states that: “To qualify for an adjustment . . . , the defendant
must have been the organizer . . . of one or more other participants.” U.S.S.G. §
3B1.1 cmt. n.2. A defendant’s assertion of control or influence over only one
individual is enough to support a § 3B1.1(c) enhancement. United States v.
Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000).
The testimony at trial showed that at least one other person was a participant
in the criminal activity and was under Borden’s supervision. Mark Hayes was
present during meetings where Borden made her tax presentations, and he
promoted her tax return preparation services at those meetings. He described
himself as an investor in one of her companies and told those in attendance that he
was assisting her in making sales presentations. Because of this evidence, we are
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not left with the definite and firm conviction necessary to set aside the district
court’s finding.
AFFIRMED.
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