Case: 13-12973   Date Filed: 12/17/2014   Page: 1 of 42


                                                                   [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT


                            No. 13-12973



               D.C. Docket No. 1:12-cr-20763-CMA-3

UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

                                versus

EARNEST BALDWIN,
EARL BALDWIN,

                                             Defendants - Appellants.


                            No. 13-12999



               D.C. Docket No. 1:12-cr-20763-CMA-1

UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

                                versus

LINETEN BELIZAIRE,

                                             Defendant - Appellant.
               Case: 13-12973       Date Filed: 12/17/2014       Page: 2 of 42




                     Appeals from the United States District Court
                         for the Southern District of Florida



                                   (December 17, 2014)

Before ED CARNES, Chief Judge, and RESTANI, * Judge, and ROBRENO, **
District Judge.

RESTANI, Judge:

       Appellants were charged with various crimes arising out of a scheme

involving the unauthorized use of personal identifying information to claim

fraudulent tax refunds, which were deposited onto debit cards opened in the names

of identity theft victims. Appellants Earnest Baldwin (“Earnest”) and Earl

Baldwin (“Earl”) were convicted by a jury. Earnest and Earl appeal their

convictions and sentences. Appellant Lineten Belizaire (“Belizaire”) pleaded

guilty, but appeals his sentence. After careful consideration and with the benefit of

oral argument, we affirm the district court in all respects.




*
 Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
**
  Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
                                               2
               Case: 13-12973   Date Filed: 12/17/2014    Page: 3 of 42


                                 BACKGROUND

      In January 2012, Earnest was pulled over for making an improper left turn,

and during the course of the stop, police saw evidence of possible identity theft

and/or tax fraud in plain view. A search of the vehicle revealed mail addressed to

people unrelated to Earnest or the vehicle’s passenger, thirty-nine debit cards, a

laptop, approximately $4,000 in cash, and documents and notebooks containing

individuals’ names, dates of birth, Social Security numbers, and addresses. The

papers and notebooks contained: (1) over 1,000 individuals’ names, Social

Security numbers, and dates of birth; (2) IRS telephone numbers; (3) personal

identification numbers for online tax returns; (4) requested refund amounts,

totaling over $1 million; (5) debit card account numbers; (6) employer

identification numbers; and (7) email addresses for online tax returns. From this

evidence, investigators discovered that hundreds of fraudulent tax returns had been

filed. Approximately $1.8 million in fraudulent refunds had been requested, and

the IRS paid out approximately $840,000. Many of these refunds were loaded onto

debit cards.

      In addition to the evidence found in the vehicle he was driving, Earnest also

was linked to residences where the returns were filed and was photographed by

surveillance cameras using the unauthorized debit cards. Earl was implicated in

the conspiracy because tax returns were filed from internet protocol (“IP”)


                                          3
              Case: 13-12973     Date Filed: 12/17/2014   Page: 4 of 42


addresses registered in his name, and he also was recorded by surveillance cameras

using unauthorized debit cards. Earnest and Earl were convicted of conspiracy to

commit fraud against the government with respect to claims in violation of 18

U.S.C. § 286, conspiracy to use unauthorized access devices in violation of 18

U.S.C. § 1029(b)(2), use of unauthorized access devices in violation of 18 U.S.C.

§ 1029(a)(2), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).

Earnest also was convicted of possessing fifteen or more unauthorized access

devices in violation of 18 U.S.C. § 1029(a)(3). Earl was sentenced to a total of 84

months’ imprisonment. Earnest was sentenced to a total of 172 months’

imprisonment.

      Belizaire was implicated in recruiting people to provide addresses to receive

debit cards that would be loaded with fraudulent tax refunds, exchanging personal

identification information of victims, filing the fraudulent returns, and using debit

cards loaded with fraudulent refunds. Belizaire pleaded guilty to conspiracy to

defraud the government with respect to claims in violation of 18 U.S.C. § 286 and

aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). He was

sentenced to 105 months’ imprisonment as to the conspiracy count and was given a

consecutive sentence of 24 months’ imprisonment on the aggravated identity theft

count, for a total of 129 months’ imprisonment.




                                          4
              Case: 13-12973     Date Filed: 12/17/2014    Page: 5 of 42


                                   DISCUSSION

      Earnest appeals the district court’s denial of his motion to suppress certain

incriminating evidence, the district court’s denial of his motion for mistrial, the

district court’s denial of his motion for acquittal on the two conspiracy counts and

the aggravated identity theft counts, and various aspects of his sentence. Earl

challenges the district court’s denial of his motion for acquittal on the two

conspiracy counts and the aggravated identity theft counts, the district court’s

instructions to the jury on the aggravated identity theft counts, and various aspects

of his sentence. Belizaire also challenges various aspects of his sentence. We first

discuss the issues pertaining to the determination of guilt or innocence for Earl and

Earnest. We then discuss the sentencing issues as they pertain to each defendant.

I. Issues Bearing on Determination of Guilt

   A. Earnest Baldwin

      1. Denial of Motion to Suppress

      Earnest argues that the district court erred in admitting evidence discovered

during the search of the vehicle he was driving, which occurred after he had been

arrested for presenting his brother’s driver’s license as his own to a police officer.

In reviewing a denial of a motion to suppress, we review the district court’s factual

findings for clear error and the application of the law to those facts de novo.

United States v. Yeary, 

, 579 n.25 (11th Cir. 2014).


                                           5
              Case: 13-12973     Date Filed: 12/17/2014   Page: 6 of 42


      Earnest’s argument is meritless. “If a car is readily mobile and probable

cause exists to believe it contains contraband, the Fourth Amendment . . . permits

police to search the vehicle without more.” Pennsylvania v. Labron, 

,

940 (1996). The district court found, and Earnest does not challenge, that there

was mail from the IRS not addressed to Earnest or the other passenger in the

vehicle, debit cards not in their names, and currency within plain view. This was

sufficient to establish probable cause to search the vehicle for evidence relating to

identity theft and tax fraud. To the extent that Earnest argues that the police were

required to obtain a warrant before allegedly opening a duffel bag found in the

vehicle, his arguments are unavailing. Once probable cause exists to search the

vehicle, the police may search all parts of the vehicle, and any containers therein,

where the object of the search might be found. Wyoming v. Houghton, 

, 301 (1999). Earnest’s reliance on the Supreme Court’s pronouncements in

Arizona v. Gant regarding searches of automobiles incident to arrest is misplaced,

as probable cause existed to support the search of the vehicle independent of his

arrest. See 

, 347 (2009) (noting that warrantless searches for evidence

relevant to crimes other than the offense of arrest would be authorized if probable

cause existed to search for evidence of those crimes).




                                          6
              Case: 13-12973    Date Filed: 12/17/2014    Page: 7 of 42


      2. Denial of Motion for Mistrial

      Earnest argues that the district court should have granted a mistrial when

Earl’s counsel suggested that Earnest had taken advantage of Earl and referred to

the biblical story of Cain and Abel. We review the refusal to grant a mistrial for

abuse of discretion. Frederick v. Kirby Tankships, Inc., 

, 1285 (11th

Cir. 2000). We find no such abuse.

      Earnest argues that a mistrial was “manifestly necessary,” because the

mutually antagonistic defenses of Earl and Earnest made it impossible for Earnest

to receive a fair trial. But “co-defendants do not suffer prejudice simply because

one co-defendant’s defense directly inculpates another, or it is logically impossible

for a jury to believe both co-defendants’ defenses.” United States v. Blankenship,

, 1125 (11th Cir. 2004). Furthermore, the specific comments

complained of by Earnest were isolated and served mainly as commentary on the

government’s characterization of Earnest, rather than as an attempt by Earl to

independently inculpate Earnest. We find no abuse of discretion in the district

court’s refusal to grant Earnest a mistrial based on these statements. See 

1125–26 (holding that there was neither prejudice nor a need for a mistrial

despite repeated remarks by counsel for co-defendant directly targeting appellants).




                                          7
              Case: 13-12973      Date Filed: 12/17/2014   Page: 8 of 42


      3. Sufficiency of Evidence Regarding Fraudulent Claims Conspiracy

      Earnest argues that the evidence was insufficient to convict him of

conspiracy to submit fraudulent claims to the government. Earnest argues that

there was no evidence that he personally filed any fraudulent tax returns; rather,

the only evidence linking him to the conspiracy was his receipt of the conspiracy’s

proceeds. We review challenges to the sufficiency of the evidence to support a

conviction de novo, viewing the evidence and all reasonable inferences derived

therefrom in the light most favorable to the government. United States v. To, 

, 743 (11th Cir. 1998).

      18 U.S.C. § 286 provides that:

      Whoever enters into any agreement, combination, or conspiracy to
      defraud the United States, or any department or agency thereof, by
      obtaining or aiding to obtain the payment or allowance of any false,
      fictitious or fraudulent claim, shall be fined under this title or
      imprisoned not more than ten years, or both.

To prove the conspiracy element, the government was required to show “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, 

, 1194 (11th

Cir. 2006). “[T]he extent of participation in the conspiracy or extent of knowledge

of details in the conspiracy does not matter if the proof shows the defendant knew

the essential objective of the conspiracy.” 

marks omitted).


                                           8
              Case: 13-12973     Date Filed: 12/17/2014   Page: 9 of 42


      There was overwhelming evidence of a scheme to defraud involving

coordinated activity among the individuals charged. Although there was no

testimony that Earnest personally filed a fraudulent return, other evidence

presented at trial clearly was sufficient to link Earnest to the scheme and to convict

Earnest of this charge. As already described, Earnest was pulled over while

driving a vehicle full of evidence linked to the conspiracy. Earnest’s fingerprints

were found on the computer screen and on one of the documents, and his personal

documents were mixed in with this evidence. When Earnest was pulled over, he

attempted to hide some of the mail. Earnest’s address and the employer

identification number for Earnest’s previous employer repeatedly appeared on the

fraudulent returns, and fraudulent returns were filed from an IP address registered

to a residence associated with Earnest. Earnest also was photographed making

withdrawals of the refunds using reordered cards with the same account numbers

as the cards seized during the traffic stop. A reasonable jury could conclude from

this evidence that Earnest knowingly and willfully agreed with others to submit

false tax returns.

      4. Sufficiency of Evidence Regarding Access Device Fraud Conspiracy

      Earnest also argues that the evidence was insufficient to convict him of

joining the access device conspiracy. 18 U.S.C. § 1029(a)(2) provides that

whoever “knowingly and with intent to defraud traffics in or uses one or more


                                          9
             Case: 13-12973     Date Filed: 12/17/2014    Page: 10 of 42


unauthorized access devices during any one-year period, and by such conduct

obtains anything of value aggregating $1,000 or more during that period” shall be

subjected to criminal penalties. Debit cards are “access devices.” See 18 U.S.C.

§ 1029(e)(1) (defining “access device” to include “any card . . . that can be

used . . . to obtain money, goods, services, or any other thing of value, or that can

be used to initiate a transfer of funds”); United States v. Charles, 

,

1224 (11th Cir. 2014). 18 U.S.C. § 1029(b)(2) provides criminal liability for

“[w]hoever is a party to a conspiracy of two or more persons to commit an offense

under subsection (a) of this section, if any of the parties engages in any conduct in

furtherance of such offense.” The same evidence supporting the fraudulent claims

conspiracy conviction amply supports the jury’s finding that Earnest agreed with

others to use unauthorized access devices.

      5. Sufficiency of Evidence Regarding Possession of Fifteen or More
         Unauthorized Access Devices

      Earnest contends that the evidence was insufficient for the jury to find that

he possessed fifteen or more access devices because the debit cards were not found

on his person and there was no proof that he knew they were inside the vehicle and

had an intention to take possession and control of them. 18 U.S.C. § 1029(a)(3)

makes it a crime for anyone to “knowingly and with intent to defraud possess[]

fifteen or more devices which are counterfeit or unauthorized access devices.” A

person constructively possesses an item when he “has knowledge of the thing
                                          10
             Case: 13-12973     Date Filed: 12/17/2014    Page: 11 of 42


possessed coupled with the ability to maintain control over it or reduce it to his

physical possession, even though he does not have actual personal dominion.”

Aqua Log, Inc. v. Georgia, 

, 1336 (11th Cir. 2010) (internal

quotation marks omitted). Constructive possession also occurs when a person

exercises “ownership, dominion, or control over the contraband itself or dominion

or control over the premises or the vehicle in which the contraband [is] concealed.”

      The evidence in total showed that Earnest was aware of and had the ability

to control the incriminating evidence in the vehicle, including the debit cards.

Earnest was the driver of the vehicle, he attempted to hide pieces of mail, his

fingerprints were on the computer and one of the documents found in the vehicle,

and Earnest’s personal documents were mixed in with the loose documents

pertaining to stolen personal identity information. Furthermore, Earnest

subsequently was photographed using reordered cards containing the same account

numbers as the ones seized from the vehicle. This evidence was sufficient for the

jury to conclude that Earnest constructively possessed the unauthorized debit cards

found in the vehicle.

      6. Sufficiency of the Evidence Regarding Aggravated Identity Theft

      Finally, Earnest argues that the evidence was insufficient to convict him of

aggravated identity theft because there was no evidence that he knew that the


                                          11
             Case: 13-12973    Date Filed: 12/17/2014    Page: 12 of 42


means of identification he used belonged to real people. 18 U.S.C. § 1028A(a)(1)

provides for an additional two-year sentence for whoever “during and in relation

to” certain felonies, including 18 U.S.C. § 1029(b)(2), “knowingly transfers,

possesses, or uses, without lawful authority, a means of identification of another

person.” The prosecution is required to prove “that the defendant knew that the

means of identification at issue belonged to another person.” Flores-Figueroa v.

United States, 

, 657 (2009). To convict Earnest of aggravated identity

theft, the government was required to show that Earnest knew that “J.T.” and

“A.W.,” the individuals whose names were on the cards used by Earnest, were real

people.

      Personal identifying information related to J.T. was found in the vehicle

driven by Earnest on a document from the Florida Agency for Persons with

Disabilities, which supports the inference that Earnest knew that J.T. was a real

person. The jury also could consider that J.T.’s information was used as part of a

scheme to obtain a refund from the IRS, which verifies the name and Social

Security number of the person requesting the refund, in considering whether

Earnest knew that J.T. was a real person. See United States v. Gomez-Castro, 

, 1249–50 (11th Cir. 2010) (sufficient circumstantial evidence of

knowledge that identity belonged to real person when defendant had “repeatedly

and successfully tested” the underlying personal information by obtaining a


                                         12
             Case: 13-12973      Date Filed: 12/17/2014    Page: 13 of 42


driver’s license and benefit cards, credit and debit cards, and a passport). This was

sufficient evidence for the jury to find beyond a reasonable doubt that Earnest

knew that J.T. was a real person.

      Regarding A.W., the evidence showed that A.W.’s personal information was

found in a notebook in the vehicle Earnest was driving, as was a card issued in

A.W.’s name. After that card had been seized, Earnest was photographed using a

reordered card in the name of A.W. Based on Earnest’s possession of A.W.’s

personal information and the repeated testing of A.W.’s identity, the jury

reasonably could find that Earnest knew that A.W. was a real person. See 

Baldwin

      1. Jury Instructions Regarding Aggravated Identity Theft Count

      Earl contends that the district court erred in allowing the jury to disregard

discrepancies between the debit card numbers listed in Counts 11 and 16 of the

indictment and those that were presented at trial. Count 11 charged Earl with using

a debit card account number with the last four digits of “9000,” but the evidence

offered at trial listed the account as ending in “9005.” Similarly, Count 16 charged

Earl with using a card ending in “9440,” but the evidence offered at trial listed the

account as ending in “9449.” In response to a jury question about this discrepancy,

the district court, over Earl’s objection, instructed the jury as follows:

      In response to your questions pertaining to Counts 11 and 16, you are
      correct that the last digits of the account numbers listed are incorrect.
                                           13
             Case: 13-12973     Date Filed: 12/17/2014   Page: 14 of 42


      You are instructed that the Court has found the last digits on the
      account numbers shown in those Counts constitute scrivener’s errors
      that do not affect the validity of the Superseding Indictment.

Earl argues that these instructions constructively amended the indictment,

requiring reversal.

      A constructive amendment of an indictment “occurs when the essential

elements of the offense contained in the indictment are altered to broaden the

possible bases for conviction beyond what is contained in the indictment.” United

States v. Keller, 

, 634 (11th Cir. 1990). This is in contrast to a

variance, where the evidence at trial differs from what is alleged in the indictment.

amendment constitutes per se reversible error if the objection

has been preserved, while a defendant must show substantial prejudice to obtain

reversal because of a variance. See 

Earl’s argument rests solely on his

contention that the instructions constituted a constructive amendment of the

indictment. Nowhere in his brief does he argue that he suffered substantial

prejudice.

      We agree with the district court that the discrepancies were scrivener’s

errors that the jury could disregard. See Russell v. United States, 

,

770 (1962) (“[A]n indictment may not be amended except by resubmission to the

grand jury, unless the change is merely a matter of form.” (emphasis added)); cf.

Stirone v. United States, 

, 217 (1960) (holding that defendant was


                                         14
             Case: 13-12973    Date Filed: 12/17/2014    Page: 15 of 42


deprived of Fifth Amendment right to be tried only on charges presented in

indictment when nature of alleged scheme was significantly altered and “the

addition [was] neither trivial, useless, nor innocuous” (emphasis added)). The

indictment alleged that on May 22, 2012, Earl used an account number ending in

“9000” issued to “R.E.,” and that on June 27, 2012, Earl used an account number

ending in “9440” issued to “S.T.” Evidence presented at trial showed that Earl

used a card issued in the name of Ronald Ephord on May 22 and that Earl used a

card issued in the name of Shatarra Torrey on June 27. The only discrepancy was

in the very last digit of the card numbers. Notably, neither party discerned any

discrepancy regarding the account numbers until it was raised by the jury during

deliberations. Cf. United States v. Miller, 

, 135 (1985) (explaining

that notice concerns “are among the important concerns underlying the

requirement that criminal charges be set out in an indictment”).

      To the extent that the district court’s instructions could be considered

anything more than a minor clerical correction, the correction is better understood

as a variance rather than a constructive amendment of the indictment. Earl relies

heavily on our decisions in Keller, 

, and United States v. Narog, 

(11th Cir. 2004), in support of his constructive amendment argument.

In Keller, the grand jury charged a conspiracy between two specific individuals,

which the government attempted to prove at trial, but the district court allowed the


                                         15
             Case: 13-12973      Date Filed: 12/17/2014    Page: 16 of 42


jury to convict as long as it found that the defendant agreed to commit the crime

with 

. In Narog, the grand jury charged a conspiracy to

possess pseudoephedrine “knowing . . . that the listed chemical would be used to

manufacture a controlled substance, that is, 

.

Although the prosecution tried the case as a methamphetamine case, the district

court instructed the jury that it could convict as long as it found that the defendants

knew that the pseudoephedrine would be used to manufacture any controlled

substance. 

In both cases, we found an impermissible alteration of the

essential elements of the offenses charged that broadened the possible bases of

conviction. 

; 

–50.

      A potentially analogous situation to Keller and Narog in this case would be

if the district court had allowed the jury to convict Earl of aggravated identity theft

as long as it found that Earl had used any means of identification belonging to any

person. But that is not what happened. The indictment charged Earl with using

debit cards in the names of “R.E.” and “S.T.,” and those charges were proven at

trial. The district court did not allow a shift in theory regarding the essential

elements of the crime, such as allowing a conviction based on the use of a different

means of identification (e.g., Social Security number or driver’s license) or the use

of a different individual’s identity (i.e., individuals other than R.E. and S.T.). The

difference in proof offered at trial is better considered a variance from the facts


                                           16
             Case: 13-12973     Date Filed: 12/17/2014   Page: 17 of 42


alleged in the indictment. Because Earl does not allege any prejudice arising from

this variance, reversal is not warranted. See 

.

      2. Sufficiency of Evidence Regarding Fraudulent Claims Conspiracy

      Earl argues that the government failed to prove that he entered into any

agreement to present false claims to the government. Earl notes that he was absent

from the vehicle containing the incriminating evidence, no documents in the

vehicle referenced Earl, and none of the evidence seized contained Earl’s

fingerprints. Earl also notes that there was no evidence that he personally filed the

tax returns, Earnest and Belizaire also had access to the IP addresses used to file

the fraudulent returns, and Earl was observed using only two fraudulently obtained

cards on a handful of transactions. Earl further notes that neither Belizaire nor

Marckell Steward, another conspirator, named Earl as a co-conspirator in their

factual proffers when pleading guilty. Although the evidence against Earl may not

be as overwhelming as the evidence against Earnest, we conclude it is sufficient to

sustain Earl’s conviction.

      First, IP records showed that at least fifty-eight fraudulent returns requesting

approximately $200,000 were submitted from the address listed on Earl’s driver’s

license. Second, several of the fraudulent returns listed this address, and a handful

of returns were sent to that address. Third, IP records showed that when Earl

moved to another address, fraudulent returns were submitted from that new


                                          17
             Case: 13-12973     Date Filed: 12/17/2014   Page: 18 of 42


address. Although the fact that Belizaire and Earnest lived with Earl at some point

at both locations somewhat decreases the probative value of the IP addresses, the

jury could infer that Earl was at least aware of the general contours of the scheme

based on the amount of activity taking place within the residences, the amount of

information needed to file so many returns, as reflected by the large amount of

evidence found in the vehicle, the rather small size of the residences (between

1,000 and 1,100 square feet), the continuation of the fraud at the second residence,

and the fact that the scheme was being perpetrated by family members at the joint

residences. See United States v. Brantley, 

, 1288 (11th Cir. 1995)

(noting that personal relationship and close proximity between defendant and

conspirators during commission of the offense made it more likely that the

defendant was aware of the illicit plan).

      Next, Earl’s involvement with the scheme could be inferred from the facts

surrounding his use of the proceeds of the fraudulent claims conspiracy. Earl was

captured on video making an ATM withdrawal from a card issued in Ronald

Ephord’s name that had been loaded with fraudulent returns. A $20 payment with

that card was made to Earl’s auto insurance company as well. Nearly $1,500 was

loaded onto this card, and nearly all of the $1,500 was withdrawn. Ephord’s social

security number was in the notebook seized from the vehicle driven by Earnest.

Earl also was captured on video making two ATM withdrawals from a card issued


                                            18
              Case: 13-12973    Date Filed: 12/17/2014    Page: 19 of 42


in the name of Shatarra Torrey. Torrey’s refund had been submitted from Earl’s IP

address. Finally, Ephord’s and Torrey’s returns listed their address as 

Street, and debit card accounts in their names also listed this as their address.

A debit card issued in the name of Earl listed that address as well, and there is no

other evidence in the record tying this address to other conspirators.

      A reasonable juror could infer based on the entirety of the evidence

presented that Earl agreed to and intentionally participated in the fraudulent claims

conspiracy.

      3. Sufficiency of Evidence Regarding Access Device Fraud Conspiracy

      Earl similarly contends that the evidence was insufficient to find that he

agreed to use unauthorized access devices. Earl contends that the evidence in

support of this claim at most establishes the substantive crime of unauthorized use

of an access device. We conclude that the evidence was sufficient to support the

jury’s verdict on this count.

      Evidence was presented regarding Earl’s use of two unauthorized access

devices on at least four occasions, withdrawing approximately $1,070. Based on

the evidence presented at trial, the jury reasonably could infer that Earl obtained

the cards from, or with the assistance of, one of the members of the conspiracy.

Even if Earl did not apply personally for the debit cards or file the fraudulent tax

returns that were loaded onto the devices, the jury reasonably could infer that Earl


                                          19
             Case: 13-12973     Date Filed: 12/17/2014    Page: 20 of 42


knew of the illicit nature of the devices, as the cards were not in his name and had

been obtained in connection with the tax refund scheme involving Earl’s family

members that had been operating out of his house. See 

.

This was sufficient evidence for the jury to find that Earl knowingly agreed with

other individuals to commit a violation of 18 U.S.C. § 1029(a)(2).

      4. Sufficiency of Evidence Regarding Aggravated Identity Theft

      Finally, Earl argues that the evidence was insufficient for the jury to find

that he knew that the access devices were in the names of real people. As

explained above, because of the personal and physical proximity to the fraudulent

claims and access device conspiracies, the jury could conclude that Earl was aware

of the nature of these conspiracies. See 

. The connection

between the address listed for the card issued in Earl’s name and the address listed

in the tax returns and debit card applications of Ephord and Torrey also supported

this inference. Based on Earl’s awareness that the cards were loaded with funds

from a fraudulent tax refund scheme, the jury reasonably could conclude that Earl

knew that the cards were issued in the names of real people, because the federal

government is unlikely to issue tax returns unless it has verified that the person

requesting it is a real person. See 

–50.




                                          20
             Case: 13-12973     Date Filed: 12/17/2014    Page: 21 of 42


II. Sentencing Issues

   A. Earnest Baldwin

      1. Sentencing Enhancements

      In challenging his sentence, Earnest first asserts that the district court erred

in applying several sentencing enhancements. Specifically, Earnest challenges his

sixteen-level enhancement for an intended loss of greater than $1 million, see

U.S.S.G. § 2B1.1(b)(1)(I), his six-level enhancement for 250 or more victims, see

U.S.S.G. § 2B1.1(b)(2)(C), and his two-level enhancement for the production or

trafficking of an unauthorized access device, see U.S.S.G. § 2B1.1(b)(11)(B)(i).

         i. Intended Loss

      A district court’s determination of loss is reviewed for clear error. United

States v. Barrington, 

, 1197 (11th Cir. 2011). The Sentencing

Guidelines “do not require a precise determination of loss,” and a district court

“need only make a reasonable estimate of the loss, given the available

information.” 

Sentencing Guidelines, “loss is the greater of actual

loss or intended loss,” U.S.S.G. § 2B1.1, cmt. n.3(A)(i), and intended loss is the

pecuniary harm that was intended to result from the offense, including pecuniary

harm “that would have been impossible or unlikely to occur.” 

The district court may make factual findings regarding loss based on trial evidence,

undisputed statements in the Presentence Investigation Report (“PSI”), or evidence


                                          21
             Case: 13-12973      Date Filed: 12/17/2014    Page: 22 of 42


presented at the sentencing hearing. United States v. Bradley, 

, 1290

(11th Cir. 2011). This evidence may include “specific circumstantial evidence,”

district court “may not speculate about the existence of a fact that

would result in a higher sentence.” 

.

      A defendant may be held responsible for the reasonably foreseeable acts of

his co-conspirators in furtherance of the conspiracy. See United States v. Mateos,

, 1370–71 (11th Cir. 2010). A district court must determine the

scope of the defendant’s criminal activity prior to considering all reasonably

foreseeable acts of co-conspirators. 

In determining the scope of “the

criminal activity the particular defendant agreed to jointly undertake,” the district

“court may consider any explicit agreement or implicit agreement fairly inferred

from the conduct of the defendant and others.” United States v. Petrie, 

, 1290 (11th Cir. 2002) (internal quotation marks omitted). If the record

otherwise supports the court’s determination, a failure to make specific findings

will not require vacating the sentence. See 

      The district court did not clearly err in calculating the loss attributed to

Earnest to be $1,803,826. According to the PSI, the $1,803,826 represented the

intended loss of the conspiracy, as it was the total amount of fraudulent refunds

requested from the IRS, and Earnest does not dispute this figure. See 

. The evidence supporting the district court’s attribution of the entire


                                          22
             Case: 13-12973     Date Filed: 12/17/2014   Page: 23 of 42


loss to Earnest was substantial. Earnest was found with much of the stolen

identification information and his personal documents were mixed in with the

documents containing the stolen identification information. Earnest lived at the

address where many of the fraudulent returns had been filed, he had worked at the

company that was listed as the employer in many of the fraudulent returns, and his

fingerprints were on the laptop and documents seized. Finally, the government

presented still photographs showing Earnest making withdrawals of distributed tax

refunds from debit card accounts connected to the conspiracy, including reordered

debit cards with the same account numbers as the ones seized from the vehicle

after Earnest’s traffic stop. This evidence sufficiently established Earnest as a key

member who agreed to participate fully in the conspiracy. Accordingly, the district

court did not err in holding Earnest accountable for the total amount of the tax

returns fraudulently filed in connection with the conspiracy.

         ii. Victim and Access Device Enhancements

      Earnest also challenges the district court’s enhancements of his sentence for

the number of victims and for the production or trafficking of access devices.

Earnest argues that other co-conspirators filed the fraudulent returns using the

stolen identity information so that the debit cards could be loaded with refunds.

Similar to his challenge to the determination of the amount of loss attributable to

him, these challenges amount to a claim that he was not sufficiently involved in the


                                          23
             Case: 13-12973     Date Filed: 12/17/2014   Page: 24 of 42


conspiracy to be held responsible for his co-conspirators’ actions. These

challenges fail for the same reasons we have just discussed. See 

–71; 

.

      2. Restitution

      Earnest next challenges the restitution amount of $500,000, arguing that the

government failed to produce evidence as to the amount of the IRS’s actual losses,

as the government did not determine the amount of distributed refunds that were

still recoverable from the debit card accounts. We review the legality of a

restitution order de novo and the underlying factual findings for clear error. United

States v. Brown, 

, 1252 (11th Cir. 2011). The amount of restitution

“must be based on the amount of loss actually caused by the defendant’s conduct.”

United States v. Liss, 

, 1231 (11th Cir. 2001). The government

bears the burden of establishing the amount of restitution by a preponderance of

the evidence. United States v. Futrell, 

, 1290 (11th Cir. 2000); see

also 18 U.S.C. § 3664(e) (“Any dispute as to the proper amount or type of

restitution shall be resolved by the court by the preponderance of the evidence.”).

Because “the determination of the restitution amount is by nature an inexact

science,” United States v. Huff, 

, 1248 (11th Cir. 2010) (internal

quotation marks omitted), where difficulties arise, a district court may accept a




                                         24
             Case: 13-12973     Date Filed: 12/17/2014   Page: 25 of 42


“reasonable estimate” of the loss based on the evidence presented. 

–92.

      The district court’s estimation of the restitution amount owed by Earnest was

not clearly erroneous. Although the government was unable to establish an exact

restitution amount, its calculation was not based on speculation, but rather, on

reasonable estimates taken from facts in the record. See 

The

restitution amount was based on the difference between the total amount of refunds

distributed during the course of the conspiracy and the total amount recoverable

from the distributed refunds. The government presented evidence that the total

amount of refunds distributed during the conspiracy was $838,000. With respect

to the total amount recoverable from the distributed refunds, the government

argued that calculating the amount would necessarily require an estimate given the

sheer number of debit card companies involved. The government asserted that

approximately one-third of the distributed tax refunds were recoverable. The one-

third estimate was based on a representative sample of the debit card accounts as

well as the testimony of Charles Torres, a special agent at the IRS. It was not clear

error to rely on the one-third estimate because there was evidence that it was a fair

estimate, and the government reduced the total amount paid out by more than one-

third, from $838,000 to $500,000.




                                         25
             Case: 13-12973     Date Filed: 12/17/2014   Page: 26 of 42


      Furthermore, there was no error in holding Earnest jointly and severally

liable for the entire restitution amount. When more than one defendant contributes

to the loss of a victim, the district court “may make each defendant liable for

payment of the full amount of restitution or may apportion liability among the

defendants to reflect the level of contribution to the victim’s loss and economic

circumstances of each defendant.” 18 U.S.C. § 3664(h). Based on Earnest’s level

of involvement in the scheme, the district court was warranted in holding him

responsible for the entire restitution amount. The restitution order is thus affirmed.

      3. Reasonableness of Sentence

      Earnest’s final challenge to his sentence is that it was substantively

unreasonable because there was a “significant sentencing disparity” between his

172-month sentence and the 72-month sentence of his co-conspirator, Marckell

Steward. The reasonableness of a sentence is reviewed for abuse of discretion.

Gall v. United States, 

, 41 (2007). Although Steward’s sentence was

less than one-half of Earnest’s, there were no unwarranted sentencing disparities

between them because Steward and Earnest were not similarly situated. Steward

cooperated with the government and entered into a plea agreement, but Earnest

provided no assistance and proceeded to trial. Additionally, Steward had a

criminal history category of I, whereas Earnest had a criminal history category of

III. Accordingly, they were not similarly situated, and it would have been


                                          26
              Case: 13-12973     Date Filed: 12/17/2014    Page: 27 of 42


improper for the district court to have compared them. See United States v.

Jayyousi, 

, 1117–18 (11th Cir. 2011) (holding that it is erroneous for

a district court to compare the sentences of a defendant who pleaded guilty with

one who did not and to compare defendants with significantly different criminal

histories).

       Further, the record establishes that the district court correctly calculated and

carefully reviewed Earnest’s guideline range. See 

(“[A correct

Guidelines range] necessarily [gives] significant weight and consideration to the

need to avoid unwarranted disparities.”). Thus, the district court gave significant

weight and consideration to the need to avoid unwarranted disparities when it

imposed Earnest’s sentence. See 

court also properly considered

the other relevant factors in 18 U.S.C. § 3553(a). Accordingly, under the totality

of the circumstances, Earnest has not shown that his sentence was substantively

unreasonable. See United States v. Gonzalez, 

, 1324 (11th Cir.

2008) (explaining that the district court need not discuss each factor explicitly and

that “[w]e will defer to the district court's judgment regarding the weight given to

the § 3553(a) factors unless the district court has made a clear error of judgment”

(internal quotation marks omitted)).




                                           27
             Case: 13-12973     Date Filed: 12/17/2014    Page: 28 of 42


   B. Earl Baldwin

      Earl raises several arguments regarding his sentence. These challenges can

be reduced to three general arguments. First, Earl contends that the district court

erred in attributing the acts of his co-conspirators to him for sentencing purposes

without making adequate findings regarding Earl’s individual role in the

conspiracy. Earl additionally asserts that his sentence was procedurally and

substantively unreasonable. Finally, Earl challenges the district court’s restitution

order, arguing that the district court erred in holding Earl jointly and severally

liable for the full amount of loss suffered by the IRS.

      1. Relevant Conduct for Sentencing

      Earl argues that the district court improperly attributed the entire $1,803,826

in tax refunds filed during the fraudulent claims conspiracy to him when the

evidence against him was limited to his use of two cards to withdraw

approximately $1,070. Similarly, Earl contends that the district court improperly

calculated the number of victims by imputing the actions of every co-conspirator to

him when Earl was photographed using the cards of only two individuals. Earl

also argues that the district court erred in applying a two-level enhancement for the

production or trafficking of unauthorized access devices even though there was no




                                          28
               Case: 13-12973        Date Filed: 12/17/2014       Page: 29 of 42


evidence that Earl personally produced or trafficked access devices. 1 These

arguments all rest on the same basic premise—that Earl should not be held

responsible for the acts of his co-conspirators because Earl’s involvement in the

conspiracies was limited.

       A defendant may be held responsible for the reasonably foreseeable acts of

his co-conspirators in furtherance of the jointly undertaken criminal activity. See

–71. To determine a defendant’s accountability for the

conduct of others, a sentencing court “must first determine the scope of the

criminal activity the particular defendant agreed to jointly undertake and then

consider the conduct of others that was both in furtherance of, and reasonably

foreseeable in connection with, the criminal activity jointly undertaken by the

defendant.” 

(internal quotation marks omitted). “[A]

sentencing court’s failure to make individualized findings regarding the scope of

the defendant’s activity is not grounds for vacating a sentence[, however,] if the

record supports the court’s determination with respect to the offense conduct,

including the imputation of others’ unlawful acts to the defendants.” 

district court failed to make individualized findings regarding the scope of


1
  Earl briefly argues in his reply brief that the enhancement for the production or trafficking of
any unauthorized access device should not apply to him because this conduct already is reflected
in his conviction and separate sentence for aggravated identity theft, citing U.S.S.G. § 2B1.6,
cmt. n.2. Because Earl failed to present this argument to the district court or raise it in his
opening brief, we do not consider it now. See United States v. Mathis, 

, 1277
(11th Cir. 2014).
                                                29
             Case: 13-12973      Date Filed: 12/17/2014    Page: 30 of 42


Earl’s involvement in the conspiracy, we affirm because the record strongly

supports imputing the acts of Earl’s co-conspirators to him.

      Earl argues that the evidence established that he engaged in only a small

number of discrete transactions. As described above, however, at least fifty-eight

fraudulent returns, totaling approximately $200,000 in requested refunds, were

submitted from the address listed on Earl’s driver’s license. Several returns were

also sent to this address. When Earl moved, returns continued to be filed from his

new address. Earl also was captured by surveillance cameras on several occasions

using cards connected with the scheme, one of which was in the name of an

individual whose personal identity information was found in Earnest’s vehicle.

This evidence suggests that Earl agreed to participate fully in the broader scheme,

rather than to engage in only a small handful of withdrawals. With the scope of

Earl’s involvement so defined, there can be little doubt that the acts that the district

court attributed to Earl were in furtherance of the jointly undertaken criminal

activity and were reasonably foreseeable by Earl.

      Earl’s reliance on our decision in United States v. Hunter, 

(11th Cir. 2003), is misplaced. In Hunter, we vacated the sentences of several

“runners” who were engaged in a counterfeit check cashing ring. 

We

held that the district court erred in holding the runners accountable for the entirety

of the loss caused by the ring without making individualized findings regarding the


                                           30
             Case: 13-12973     Date Filed: 12/17/2014   Page: 31 of 42


scope of the criminal activity to which they agreed. See 

We noted that

although the defendants appeared to be aware that there was a much larger check

cashing ring, the evidence showed that the defendants cashed only a handful of

checks. See 

There was no evidence suggesting that the defendants

had any interest in the overall scheme beyond the small number of transactions in

which they were involved. See 

Here, a great deal of the fraudulent

activity took place at Earl’s residences, the co-conspirators included Earl’s family

members, and Earl received profits from the scheme. This evidence tying Earl to

the broader scheme is far more substantial than the evidence presented by the

prosecution in Hunter. Accordingly, we see no similar need to remand to the

district court to make further findings. See United States v. McCrimmon, 

, 731–33 (11th Cir. 2004) (citing Petrie and directly examining trial record to

affirm sentence while distinguishing Hunter on the basis that defendant’s

participation in fraudulent scheme was not comparable to degree of defendants’

participation in scheme at issue in Hunter).

      2. Reasonableness of Sentence

      Next, Earl argues that his sentence is procedurally and substantively

unreasonable. The reasonableness of a sentence is reviewed for abuse of

discretion, 

, and the court will remand for resentencing only if

the district court “committed a clear error of judgment in weighing the § 3553(a)


                                         31
               Case: 13-12973        Date Filed: 12/17/2014        Page: 32 of 42


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, 

, 1190 (11th

Cir. 2010) (en banc).

       Earl contends that his sentence is procedurally unreasonable because it was

based on improper sentencing enhancements. As previously explained, Earl’s

sentencing enhancements were proper and thus Earl has failed to show that his

sentence is procedurally unreasonable.

       Earl argues that his sentence is substantively unreasonable because the

district court failed to give proper weight to the factors in 18 U.S.C. § 3553(a).2

Earl has not shown that his sentence was substantively unreasonable in the light of

the totality of the circumstances and the § 3553(a) factors. See 

. The district court properly considered that the offense was particularly

serious, given that over 1,000 individuals’ identities, including the identities of

disabled people and high school students, were compromised, and approximately

$1,803,826 in fraudulent tax returns were requested over the course of the

conspiracy. Further, given the harm caused to the community and to the

government by the conspiracy, the need to promote respect for the law and the

2
  The § 3553(a) factors include the need to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense, to deter criminal conduct, and to
protect the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). The
factors also include the nature and circumstances of the offense, the history and characteristics of
the defendant, the kinds of sentences available, the applicable guideline range, the pertinent
policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing
disparities, and the need to provide restitution to victims. 

(3)–(7).
                                                32
             Case: 13-12973     Date Filed: 12/17/2014   Page: 33 of 42


need to provide deterrence was high. The district court, however, also considered

Earl’s PSI, which included information relative to Earl’s personal history and

characteristics, as well as letters submitted by Earl’s family, and concluded that a

downward variance from the proper guideline range was appropriate. Relative to

Counts 1 and 3, the district court downwardly departed from the proper guideline

range of 78 to 97 months’ imprisonment and imposed concurrent sentences of 60

months. Moreover, Earl’s sentence is well below the statutory maximum of 10

years’ imprisonment for Counts 1 and 3. See 18 U.S.C. §§ 286, 1029(c)(1)(A)(i);

. Earl’s sentence accordingly is substantively

reasonable, and he has not satisfied his burden of proving otherwise. See

; United States v. Talley, 

, 788 (11th Cir.

2005) (noting that “the party who challenges the sentence bears the burden of

establishing that it is unreasonable”).

      3. Restitution Amount

      Finally, Earl contends that the government failed to show that the $500,000

in loss for restitution purposes was attributable to him. Pursuant to 18 U.S.C.

§ 3664(h):

      If the court finds that more than 1 defendant has contributed to the
      loss of a victim, the court may make each defendant liable for
      payment of the full amount of restitution or may apportion liability
      among the defendants to reflect the level of contribution to the
      victim’s loss and economic circumstances of each defendant.


                                          33
               Case: 13-12973     Date Filed: 12/17/2014   Page: 34 of 42


In the light of the evidence described above regarding Earl’s culpability for

purposes of calculating his sentence pursuant to the Sentencing Guidelines,

we perceive no error in the district court’s decision to make each defendant,

including Earl, liable for payment of the full amount of restitution owed to

the IRS.

      C. Lineten Belizaire

        1. Application of Sentencing Guidelines

        First, Belizaire argues that the district court erred in applying the U.S.S.G.

§ 2B1.1 guidelines. He maintains that the U.S.S.G § 2T guidelines are more

applicable and would have resulted in a substantially shorter sentencing range than

a calculation under § 2B1.1. We review the interpretation of the Sentencing

Guidelines and its application to facts de novo. See 

–

95.

        After determining the offense of conviction, the court turns to the

Sentencing Guideline’s Statutory Index to determine the applicable offense

guideline section. United States v. Saavedra, 

, 1315 (11th Cir.

1998). Once that guideline is selected, “relevant conduct is considered in

determining various sentencing considerations within that guideline, including the

base offense level, specific offense characteristics, and any cross-references.” 

                                            34
             Case: 13-12973    Date Filed: 12/17/2014    Page: 35 of 42


      Belizaire pleaded guilty to violating 18 U.S.C. § 286. The Statutory Index

provides that U.S.S.G. § 2B1.1 applies when the statute of conviction is 18 U.S.C.

§ 286. See U.S.S.G. app. A. Section 2B1.1(c)(3) of the Sentencing Guidelines,

however, provides that if a defendant was convicted under a general fraud statute

and the conduct described in the count of conviction “establishes an offense

specifically covered by another guideline in Chapter Two,” the court should apply

the other guideline. The commentary further explains that if the conviction is for

“an offense involving fraudulent conduct that is more aptly covered by another

guideline,” the other guideline should be used. See U.S.S.G § 2B1.1, cmt. n.16.

      Belizaire relies on United States v. Brisson, 

, 992 (7th Cir.

2006), which in turn relied on the Third Circuit’s opinion in United States v.

Barnes, 

, 139–40 (3rd Cir. 2003) and the Ninth Circuit’s opinion in

United States v. Aragbaye, 

, 1105–06 (9th Cir. 2000), for the

proposition that the tax guidelines (U.S.S.G. § 2T) should apply to false claims for

tax refunds. Those courts found that the § 2T guidelines may be appropriate when

the “offense conduct was at heart a scheme to file fraudulent tax returns and thus

could be considered on par with tax fraud.” 

(quoting

).

      Here, the heart of Belizaire’s scheme was not simply to file fraudulent tax

returns, impede the IRS from collecting taxes, or counsel others to falsify their own


                                         35
               Case: 13-12973       Date Filed: 12/17/2014       Page: 36 of 42


returns, like the crimes in Brisson, Barnes, and Aragbaye. Rather, Belizaire

unlawfully enriched himself by stealing identities, defrauding the victims by filing

false returns, and obtaining and using fraudulent debit cards in the victims’ names

to receive the fraudulent returns. Although the conduct involved filing tax returns,

Belizaire’s goal was to enrich himself by defrauding the government with entirely

fictitious tax returns, and thus the § 2B1.1 guidelines more aptly fit the specifics of

the crimes committed by Belizaire. 3 Cf. United States v. Anderson, 

, 1332 (11th Cir. 2003) (applying general fraud guideline over more specific

bid-rigging guideline, pursuant to cross reference in U.S.S.G. § 2X, because bid

rigging was “merely a means to an end,” namely defrauding the government).

       Belizaire further argues that if either section could cover the offense

conduct, the district court should have applied the § 2T guidelines pursuant to the

rule of lenity. Belizaire’s argument is unpersuasive. To invoke the rule of lenity,

the court “must conclude that there is a grievous ambiguity or uncertainty in the

statute.” Muscarello v. United States, 

, 138–39 (1998) (internal

quotation marks omitted). There is no “grievous ambiguity or uncertainty in the

statute” that Belizaire can point to which would allow him to invoke this rule.

Assuming the offense conduct is covered by both guidelines, as Belizaire urges,


3
  The government also argues that 18 U.S.C. § 286 does not constitute the type of general fraud
statute that would implicate the use of the cross reference in § 2B1.1(c)(3). We need not decide
this issue because we find that Belizaire’s offense conduct is more aptly covered by § 2B1.1.
                                               36
             Case: 13-12973     Date Filed: 12/17/2014     Page: 37 of 42


the guidelines provide a clear solution. Under U.S.S.G. § 1B1.1, “where two or

more guideline provisions appear equally applicable, but the guidelines authorize

the application of only one such provision, use the provision that results in the

greater offense level.” U.S.S.G. § 1B1.1, cmt. n.5.

      The district court thus did not err in applying U.S.S.G. § 2B1.1, the general

fraud guideline, to determine Belizaire’s offense level.

      2. Intended Loss

      The district court attributed the entirety of the $1,803,826 in requested tax

refunds to Belizaire, resulting in a sixteen-level increase based on an intended loss

of greater than $1 million. U.S.S.G. § 2B1.1(b)(1)(I). Belizaire argues that he

should not be responsible for the fraudulent returns filed between January 22,

2012, and March 2, 2012, because he was incarcerated during that time and, as a

result, could not participate in “some of the most crucial fraudulent activities” of

the conspiracy.

      A defendant may be “responsible for the losses resulting from the reasonably

foreseeable acts of co-conspirators in furtherance of the conspiracy.” 

. “[N]either arrest nor incarceration automatically triggers withdrawal

from a conspiracy.” United States v. Gonzalez, 

, 1427 (11th Cir.

1991). It was foreseeable that the other members of the conspiracy would continue

to operate despite Belizaire’s absence. Belizaire, therefore, cannot claim that he


                                          37
             Case: 13-12973     Date Filed: 12/17/2014    Page: 38 of 42


ceased being part of the conspiracy by virtue of his arrest. Further, upon his

release, Belizaire continued to withdraw various sums of cash using the fraudulent

accounts. These withdrawals demonstrate that he never ceased to be a part of the

overall conspiracy and is responsible for the losses incurred during his

incarceration.

      3. Managerial Role Enhancement

      Belizaire argues that the district court erred in applying a sentencing

enhancement for his supervisory role in the conspiracy. He contends that the

enhancement is not applicable because he was merely a “middleman” and did not

engage in recruitment of individuals to the conspiracy.

      We review the district court’s decision to enhance a defendant’s offense

level based on his role in the offense for clear error. United States v. Rendon, 

, 1331 (11th Cir. 2003). It is the government’s burden to prove “by a

preponderance of the evidence that the defendant had an aggravating role in the

offense.” United States v. Yeager, 

, 1226 (11th Cir. 2003).

      The Sentencing Guidelines provide for a three-level enhancement to the base

offense level “[i]f the defendant was a manager or supervisor (but not an organizer

or leader) and the criminal activity involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(b). To apply the enhancement “the

defendant must have been the organizer, leader, manager, or supervisor of one or


                                         38
             Case: 13-12973     Date Filed: 12/17/2014    Page: 39 of 42


more other participants.” U.S.S.G. § 3B1.1, cmt. n.2. “A ‘participant’ is a person

who is criminally responsible for the commission of the offense, but need not have

been convicted.” 

Some factors the court may consider include:

      the exercise of decision making authority, the nature of participation
      in the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

see United States v. Njau, 

, 1041 (11th Cir. 2004)

(noting that the district court could consider the factors in determining the nature of

the defendants role). Belizaire does not dispute that the “criminal activity involved

five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).

Rather, he disputes his role as a manager.

      Belizaire’s factual proffer accompanying his guilty plea indicates that he

acted as a manager. Belizaire received names and social security numbers from

co-conspirators for the purpose of submitting fraudulent returns. Belizaire also

recruited other unindicted co-conspirators to obtain addresses of residences where

the debit cards could be received. Further, Belizaire was deeply involved in the

conspiracy. He sent and received victims’ personal identification information used

to file the fraudulent tax returns as well as debit card account numbers that were to

be used for receiving the victims’ tax refunds. Many of the fraudulent tax returns

were also submitted from an IP address registered in Belizaire’s name. Finally,
                                          39
              Case: 13-12973      Date Filed: 12/17/2014    Page: 40 of 42


Belizaire made numerous withdrawals of the distributed returns with the debit

cards. Taking the factors prescribed by the statute into account, the district court

did not clearly err in finding that Belizaire was a manager or supervisor of one or

more participants.

       4. Number of Victims

       Belizaire contends that the government failed to prove that there were more

than 250 victims because it did not establish precisely how many tax returns

contributed to the actual loss. We review the district court’s finding of the number

of victims for clear error. See United States v. Philidor, 

, 885 (11th

Cir. 2013).

       The Sentencing Guidelines provide for a six-level enhancement to a base

offense level if the crime involves 250 or more victims. U.S.S.G.

§ 2B1.1(b)(2)(C). For purposes of § 2B1.1, “‘[v]ictim’ means . . . any person who

sustained any part of the actual loss” attributed to the crime. U.S.S.G. § 2B1.1,

cmt. n.1. In cases involving means of identification, like Social Security numbers,

“victim” also includes “any individual whose means of identification was used

unlawfully or without authority.” 

A means of identification must

be of an “actual (i.e., not fictitious) individual.” 

       The district court determined that there were 250 or more victims affected

by the conspiracy. The undisputed facts in the Second PSI indicate that notebooks


                                            40
             Case: 13-12973     Date Filed: 12/17/2014      Page: 41 of 42


seized from the vehicle driven by Earnest contained approximately 1,300

individuals’ names, dates of birth, and Social Security numbers. The Second PSI

indicated that the IRS, through the notebooks, discovered over 500 tax returns filed

with stolen identity information for the 2010 and 2011 tax years. The district court

reasonably could infer, “based on common sense and ordinary human experience,

that the [IRS] verifies identifying information, like Social Security numbers, before

issuing a tax refund.” 

–86. Further, “the fact that the

[IRS] paid the refunds . . . indicates that the Social Security numbers used to

procure those refunds [were] associated with real people.” 

The district

court properly concluded that the identifying information used to file 500-plus tax

returns matched actual individuals. Therefore, the determination that more than

250 victims’ identities were used unlawfully or without their authority in

connection with the conspiracy was not clearly erroneous.

      5. Restitution Amount

      Belizaire argues that because the government failed to make any specific

showing regarding the exact dollar amount of loss sustained by the IRS, the

restitution amount of $500,000 was clearly erroneous. This is the same argument

raised by Earnest, and we reject it for the same reasons.




                                          41
             Case: 13-12973   Date Filed: 12/17/2014   Page: 42 of 42


                                CONCLUSION

      For the foregoing reasons, the judgments of conviction and sentences of the

appellants are

      AFFIRMED.




                                       42