United States v. Kimberly English ( 2018 )

FILED
NOT FOR PUBLICATION
FEB 26 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10360
Plaintiff-Appellee, D.C. No.
1:14-cr-00217-DAD-BAM-1
v.
KIMBERLY ENGLISH, AKA Kimberly MEMORANDUM*
Brown-English,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted February 16, 2018**
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Kimberly English appeals the sentence imposed following her jury
conviction for two counts of filing a fraudulent tax return by an employee of the
United States, and four counts of making an opportunity for a person to defraud the
United States, arising out of her preparation and filing of fraudulent tax returns on
behalf of herself and others. 26 U.S.C. § 7214(a)(7), (a)(5). English argues that
the district court abused its discretion by imposing a two-level adjustment for her
use of a “special skill” pursuant to U.S. Sentencing Guidelines § 3B1.3. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, the district court identified the correct legal standard when it selected
and interpreted U.S.S.G. § 3B1.3. The court found that English had “specialized
training” that was “not possessed by members of the general public.” These are
nearly exact quotes from § 3B1.3 and application note 4. See U.S.S.G. § 3B1.3
(“If the defendant . . . used a special skill, in a manner that significantly facilitated
the commission or concealment of the offense, increase by 2 levels.”); U.S.S.G. §
3B1.3 cmt. n.4 (“‘Special skill’ refers to a skill not possessed by members of the
general public and usually requiring substantial education, training, or licensing.”).
Second, English’s many years as an Internal Revenue Service (“IRS”)
employee and her specialized training were sufficient to support the application of
the special skill enhancement. In determining whether a skill constitutes a “special
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skill” within the meaning of the Guidelines, we consider: (1) “whether the skill is
possessed by members of the general public,” and (2) “whether the skill requires
substantial training, education or licensing, and is analogous to the skills described
in the application note.” United States v. Corona-Verbera, 509 F.3d 1105, 1120
(9th Cir. 2007).
As for the first step, the preparation of other’s returns is not an activity in
which the general public typically engages. It is a skill which is often exercised by
accountants, a group of individuals expressly identified in the Guidelines as
holding “special skills.” U.S.S.G. § 3B1.3 cmt. n.4. English prepared tax returns
for at least 15 other individuals. From this, the district court could infer her skill at
preparing tax returns was not a skill possessed by the general public. Last, English
charged money for her services, from which the district court could infer that she
was selling a service not possessed by members of the general public.
As for the second step, English became familiar with certain aspects of tax
law during her employment by the IRS. By early 2012, she knew the tests that the
IRS used to determine whether a taxpayer can properly claim head of household
filing status, dependents, child tax credit, and additional child tax credit. Upon
being promoted to a Correspondence Exam Technician (“CET”) in 2012, English
participated in an eight-week training course, which included 112 hours of
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hands-on lab training. English gained additional familiarity with exemptions and
other areas of tax law during her “on-the-job instruction” period when she was
assigned a coach to oversee her work. As a CET, English was responsible for
fielding and answering questions from taxpayers.
Furthermore, the knowledge, training, and experience that English acquired
during her employment by the IRS facilitated her preparation and filing of the
charged returns. See U.S.S.G. § 3B1.3 (special skill enhancement appropriate
where the defendant “used a special skill[] in a manner that significantly facilitated
the commission or concealment of the offense”). By the end of 2012, English had
received specialized training regarding the very deductions, exemptions, and
credits that were fraudulent in the 2012 charged returns, which she filed in the
spring of 2013.
AFFIRMED.
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