United States v. Katisha Brown , 314 F. App'x 234 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-14906 ELEVENTH CIRCUIT
December 3, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00036-CR-RDP-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATISHA BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 3, 2008)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Katisha Brown appeals the sentences1 imposed pursuant to her guilty pleas
on the following charges: (1) conspiracy to make and present false claims to the
Internal Revenue Service (“IRS”) and to commit bank fraud, 18 U.S.C. §§ 371
and 2 (Count 1); (2) aiding and abetting falsely made and presented claims to the
IRS, 18 U.S.C. §§ 287 and 2 (Count 11); and (3) aiding and abetting bank fraud, 18
U.S.C. §§ 1344 and 2, (Count 25). On appeal, Brown argues that the district court
erroneously applied a ten-level enhancement to her guidelines offense level. U.S.
S ENTENCING G UIDELINES M ANUAL § 2B1.1(b)(1)(F) (2007). Brown also argues
that the court erroneously failed to apply a two-level minor participant reduction.
§ 3B1.2(b). Brown further argues that the district court improperly enhanced her
sentences based on facts that were neither admitted by Brown nor found beyond a
reasonable doubt. We affirm.
BACKGROUND
Brown’s codefendant Al Morton, Jr., owned and operated Taxx Enterprises,
a commercial tax return preparer that participated in a Refund Anticipated Loan
(“RAL”) program with Bank One. Morton enlisted individuals with valid social
security numbers who had not already filed their tax returns. He created false tax
returns on their behalf. Morton used the false returns to secure RAL checks from
1
As to Counts 1, 11, and 25, the district court sentenced Brown to eighteen months,
concurrent, incarceration.
2
Bank One, which were payable to the taxpayer and from which Taxx Enterprises
received a fee. He also enlisted recruiters, who received a commission for bringing
individuals into the scheme. Morton, the recruiter, and the taxpayer would split the
RAL proceeds check issued to the taxpayer.
Brown was recruited into the scheme by codefendant Queshawndra
Randolph. Brown filed her own false tax return. She also recruited other
individuals into the scheme. From the date that Brown joined the conspiracy,
twenty-seven total false returns were filed seeking approximately $156,368 in
refunds.
DISCUSSION
“This Court reviews a District Court’s interpretation of the Sentencing
Guidelines de novo, and its factual findings for clear error.” United States v.
Vance, 494 F.3d 985, 994 (11th Cir. 2007). Even “[a]fter . . . Booker2 and Gall,3
the district courts are still required to correctly calculate the advisory Guidelines
range.” United States v. Livesay, 525 F.3d 1081, 1089 (11th Cir. 2008). “[W]hen
a district court applies the guidelines in an advisory manner, nothing in [Booker]
prohibits the district court from imposing guidelines enhancements based on facts
2
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
3
Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).
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found by the judge by a preponderance of the evidence.” United States v. Douglas,
489 F.3d 1117, 1129 (11th Cir. 2007) (per curiam) (citations omitted), cert. denied,
___ U.S. ___, 128 S. Ct. 1875, 170 L. Ed. 2d 752 (2008).
Moreover, “it is not necessary to decide guidelines issues or remand cases
for new sentence proceedings where the guidelines error, if any, did not affect the
sentence.” United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (citation
and quotation marks omitted). Thus, we have affirmed a defendant’s sentence
without addressing the defendant’s argument that the district court miscalculated
the amount of loss for purposes of the § 2B1.1(b) enhancement where the district
court stated that it would have imposed the same sentence regardless of such
calculations. See, e.g., United States v. Tampas, 493 F.3d 1291, 1305 (11th Cir.
2007) (“[W]here the district court would have imposed the same sentence
regardless of the Guidelines’ recommendations on the amount of loss, any error in
its loss calculation is harmless.”).
Here, Brown challenges only the district court’s guidelines calculations.
The district court stated that Brown’s sentences would have been the same if the
court had calculated the guidelines differently. The court recognized that the
guidelines were advisory, stated that the sentences complied with the statutory
factors, and sentenced Brown within the applicable statutory range. Accordingly,
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the court did not err in enhancing Brown’s offense level based on facts that it
found by a preponderance of the evidence. And because the court would have
imposed the same sentences regardless of the guideline calculations, any error in
the district court’s guidelines calculations was harmless.
CONCLUSION
After carefully reviewing the record and the parties’ briefs, we discern no
reversible error. We affirm Brown’s sentences.
AFFIRMED.
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