United States v. Hassan Osman , 929 F.3d 962 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1502
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Hassan Osman
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: March 11, 2019
Filed: July 11, 2019
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Hassan Osman of conspiring to file false tax returns in
violation of 18 U.S.C. § 371, aiding and assisting in the preparation of false tax
returns in violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2, and failing to appear
at a pretrial conference in violation of 18 U.S.C. § 3146(a)(1). The district court1
sentenced him to 108 months’ imprisonment and three years’ supervised release. He
appeals the sentence, challenging the application of a three-level role enhancement
under United States Sentencing Guideline § 3B1.1(b), and the restriction on his
computer and internet use during supervised release. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
I.
From 2008 to 2011, Osman operated a scheme to prepare false tax returns with
Christine Clausen, Christiana Ocholi, and Mo William. They filed tax returns in the
names of themselves and others. The false tax returns sought over $965,000 from the
Internal Revenue Service (IRS). The IRS paid about $347,000 in refunds, mostly in
the form of prepaid debit cards sent to Osman and William. The conspirators initially
used tax preparers to file the false returns. In March 2009, they switched to tax
software, filing the returns themselves. The conspirators filed many returns from the
Internet Protocol (IP) address of Osman’s business, Hot Wireless.
A jury convicted Osman on 15 counts: one count of conspiracy to defraud the
United States in violation of 18 U.S.C. § 371; thirteen counts of aiding and assisting
the preparation of a false tax return in violation of 26 U.S.C. § 7206(2) and 18 U.S.C.
§ 2; and one count of failure to appear at a pretrial conference in violation of 18
U.S.C. § 3146(a)(1). The district court imposed a three-level enhancement under
U.S.S.G. § 3B1.1(b) for managing and supervising a criminal operation with five or
more participants. The court also imposed a special condition restricting Osman’s
computer use during supervised release:
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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Defendant shall not possess or use a computer or have access to any
online service without the prior approval of the U.S. Probation and
Pretrial Services Office. Defendant’s cooperation shall include, but is
not limited to, allowing installation of a computer and Internet
monitoring program and/or identifying computer systems,
Internet-capable devices, and similar memory and electronic devices to
which he has access. Monitoring may include random examinations of
computer systems along with Internet, electronic, and media storage
devices under his control. The computer system or devices may be
removed for a more thorough examination, if necessary. Defendant shall
contribute to the costs of such monitoring services, based on your ability
to pay, as deemed appropriate by the U.S. Probation and Pretrial
Services Office.
On appeal, Osman objects to the three-level enhancement and the computer
restriction.
II.
Osman challenges the district court’s factual finding that he was a manager or
supervisor of the criminal activity, and thus subject to a three-level sentencing
enhancement under U.S.S.G. § 3B1.1(b). This court reviews the district court’s
factual findings for clear error. United States v. Reid, 827 F. 3d 797, 800-01 (8th Cir.
2016). See United States v. Whirlwind Soldier, 499 F.3d 862, 872 (8th Cir. 2007)
(noting that “the defendant’s role in the offense” is a finding of fact).
Sentencing Guideline § 3B1.1(b) requires two elements for a three-level
enhancement. First, the defendant must act as “manager or supervisor” of an offense.
U.S.S.G. § 3B1.1(b). Second, the criminal activity must involve “five or more
participants” or be “otherwise extensive.” Id. Osman does not challenge the second
element.
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“To qualify for an adjustment under [§ 3B1.1(b)], the defendant must have
been the organizer, leader, manager, or supervisor of one or more other participants.”
United States v. Hammerschmidt, 881 F.3d 633, 637 (8th Cir. 2018), quoting
U.S.S.G. § 3B1.1 cmt. n.2. The evidence showed Osman recruited the majority of
filing conspirators and collected their personal information. He then oversaw the
status of the tax returns, obtaining corrected information where necessary.
Additionally, he controlled the deposit of the fraudulent refunds. The conspirators
relied on him to share these funds with them.
Osman also supervised Clausen, directing her to file at least 30 false tax returns
and requiring her to report back “so that Osman could track her progress.” Clausen
traveled to Hot Wireless once a week to receive personal information that Osman
gathered. Clausen made notes about the returns she filed. She returned the notes to
Osman for his review. Osman used a computer at Hot Wireless to check the status
of returns. He contacted Clausen if the IRS rejected a return. He also controlled the
addresses where the IRS sent the refunds. And he controlled how much Clausen
received from the refunds. At trial, Clausen testified she felt like she worked for
Osman.
These facts support the finding that Osman managed or supervised a criminal
activity. See United States v. Mickle, 464 F.3d 804, 807-08 (8th Cir. 2006)
(upholding a U.S.S.G. § 3B1.1(a) enhancement for defendants who “recruited
accomplices, helped plan the offense, claimed a right to a greater share of the
proceeds, and exercised control over other participants by setting the terms of the
arrangement”); United States v. Loveless, 139 F.3d. 587, 594 (8th Cir. 1998)
(affirming a three-level U.S.S.G. § 3B 1.1(b) enhancement for a defendant who
controlled the finances of a criminal scheme); United States v. Flores, 73 F.3d 826,
836 (8th Cir. 1996) (affirming a three-level U.S.S.G. § 3B 1.1(b) enhancement for a
defendant who planned and organized large scale drug distributions).
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Osman argues he could not have been a manager because Clausen began the
scheme. But this is not determinative. “The enhancement does not apply solely to
those who first instigated the criminal activity, and the defendant need not be the only
organizer or leader.” United States v. Bolden, 596 F.3d 976, 984 (8th Cir. 2010). See
generally United States v. Irlmeier, 750 F.3d 759, 764 (8th Cir. 2014) (this court
defines “manager” and “supervisor” “quite liberally”).
The district court did not err in applying a three-level sentencing enhancement
under U.S.S.G. § 3B1.1(b) for Osman’s role as a manager or supervisor of the
criminal activity.
III.
Osman challenges the condition of supervised release restricting his computer
use. Because he failed to object to the condition in the district court, this court
reviews for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009)
(reviewing for plain error where defendant failed to object in district court); United
States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003) (same). Under plain error review,
Osman must show: “(1) there is error, (2) that is plain, (3) that affects a substantial
right, and (4) that seriously affects the integrity or public reputation of judicial
proceedings.” United States v. Londondio, 420 F.3d 777, 786 (8th Cir. 2005), citing
United States v. Olano, 507 U.S. 725, 732-36 (1993).
A special condition of release “must be supported by particularized findings
specific to the defendant, rather than be categorically applied to all those found guilty
of committing that offense.” United States v. West, 829 F.3d 1013, 1020 (8th Cir.
2016). See United States v. Wiedower, 634 F.3d 490, 495-96 (8th Cir. 2011)
(reversing, on abuse-of-discretion review, a condition of supervised release because
the district court did not individually analyze the appropriateness of the restriction).
The government agrees that the district court did not make particularized findings to
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support the restriction on computer and internet use. Failure to make these
particularized findings is plain error. See United States v. Carson, 924 F.3d 467, 474
(8th Cir. 2019) (“We agree with Carson that the district court plainly erred by failing
to make any effort to support the challenged conditions (or any other special
condition) with individualized findings.”).
However, Osman “must still show the error affected his substantial rights.” Id.“Where the basis for an imposed condition is sufficiently evident and can be
discerned from the record, reversal is not required by a lack of individualized
findings.” Id. See United States v. Schaefer, 675 F.3d 1122, 1124 (8th Cir. 2012)
(“While this court encourages detailed findings, it is enough that the basis for the
imposed condition can be discerned from the record.”).
The record supports the special condition of supervised release. Osman sent
emails instructing Clausen to file false tax returns. All of the tax returns used a
computer. The conspirators filed tax returns from an IP address at Hot Wireless. The
use of computers and the internet was central to the criminal operation. See United
States v. West, 829 F.3d 1013, 1021 (8th Cir. 2012) (stating that “a restriction could
be upheld if the conduct at issue...was central to [the defendant’s] offense”).
Further, the computer restriction does not impose an unnecessary deprivation
of liberty. Osman may access a computer with the approval and monitoring of the
U.S. Probation and Pretrial Services Office. Thus, he is not absolutely prohibited
from computer use during supervised release. See United States v. Goettsch, 812
F.3d 1169, 1171 (8th Cir. 2016) (“The computer and internet restriction imposed by
the district court in this case is reasonable because it is not a total ban on internet and
computer use. Goettsch may access computers for employment purposes and may
obtain permission from his probation officer to use a computer for any other
legitimate personal purpose.”); United States v. Muhlenbruch, 682 F.3d 1096, 1104-
05 (8th Cir. 2012) (“[W]e find that the restrictions do not involve a greater
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deprivation of liberty than is reasonably necessary under the circumstances. The
conditions do not amount to a total ban on computer and internet access because
Muhlenbruch ‘can seek permission from his probation officer to perform the
restricted activities.’”).
Osman relies on United States v. West, 829 F.3d 1013 (8th Cir. 2012) to argue
the condition is invalid. There, this court vacated a condition of supervised release
that restricted computer use for a tax evader who promoted his views online. West,
829 F.3d at 1013. But this case differs from West in significant ways. The defendant
in West never used a computer to manage or supervise a criminal scheme. Id. In fact,
the criminal activity there, failure to file a tax return, did not rely on computer or
internet use. Id. Finally, the West defendant objected to his conditions of supervised
release at sentencing, and review was for abuse of discretion, not plain error. Id. at
1017.
Osman’s challenge is without merit. The district court’s failure to make
particularized findings did not affect Osman’s substantial rights.
IV.
In a supplemental brief, Osman presents three issues. First, he objects to the
two-level enhancement for using sophisticated means. The district court found that
he used fake employers, stolen identities, different addresses and P.O. boxes, and that
the scheme was complex, repetitive, and coordinated. See U.S.S.G. §
2B1.1(b)(10)(C) & cmt. n.9(B). These findings are not clearly erroneous and
adequately support the enhancement. See 8th Cir. R. 47B.
Second, Osman believes the district court did not adequately explain its
sentence. To the contrary, on this plain error review, the district court adequately
explained its within-guideline sentence. See United States v. Bistrup, 449 F.3d 879,
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883-84 (8th Cir. 2006) (the sentencing court need not “repeat all of its findings when
it decides on a specific term of imprisonment”); United States v. Feemster, 572 F.3d
455, 461-62 (8th Cir. 2009) (en banc) (this court may give a presumption of
reasonableness to a within-guidelines sentence); 8th Cir. R. 47B.
Third, for the first time on appeal, Osman asserts there was insufficient
evidence for the amounts of loss and restitution. To the contrary, the amounts listed
in the superceding indictment and the Presentence Investigation Report support the
amounts of loss and restitution. See 8th Cir. R. 47B.
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The judgment is affirmed.
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