United States v. Dorothy Anderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4433

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DOROTHY LEE ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-00837-JFA-1)

Argued: May 17, 2013 Decided: July 10, 2013

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Wilkinson wrote the
majority opinion, in which Judge Duncan joined. Judge Wynn
wrote a dissenting opinion.

ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina, for Appellant. Jamie L. Schoen, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Winston D.
Holliday, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
WILKINSON, Circuit Judge:

Defendant Dorothy Lee Anderson was convicted of twenty

counts of various crimes for using stolen identities to

fraudulently obtain federal income tax refunds. Anderson now

challenges the jury’s guilty verdict on four of those counts, as

well as the district court’s application of two sentencing

enhancements. However, finding sufficient evidence to support the

convictions and concluding that the district court did not err

in applying either of the enhancements, we affirm.

I.

In late 2007, Anderson took steps to establish a tax

preparation business under the name of “DL Anderson Tax

Service.” She applied to the IRS for authorization to

electronically file tax returns and was issued an Electronic

Filing Identification Number (“EFIN”) for her business and a

Preparer’s Tax Identification Number (“PTIN”) for herself as a

paid tax preparer. Anderson used the EFIN and PTIN throughout

2008 to submit returns for the 2007 tax year.

In February 2009, the IRS interviewed Anderson as part of

an investigation into certain returns filed by her business

putatively on behalf of paid clients. Each return in question

indicated that the refund due was to be deposited into one of

several bank accounts controlled by Anderson, and each named

2
Anderson as a third-party designee authorized to receive private

tax information relating to the filer. When asked about these

returns, Anderson stated that her employee, Tamika Davis,

prepared them, but an IRS agent assigned to the case later

testified that he could find “no evidence of an existence of

that person.” J.A. 55.

On September 21, 2011, a federal grand jury in the District

of South Carolina charged Anderson in a twenty-one count

superseding indictment with nineteen counts of submitting false,

fictitious, or fraudulent claims against the United States, in

violation of 18 U.S.C. § 287; one count of embezzling public

money or property, in violation of 18 U.S.C. § 641; and one

count of aggravated identity theft, in violation of 18 U.S.C.

§ 1028A. The indictment alleged that Anderson stole the

identities of nineteen individuals and used their personal

information to file fraudulent tax returns, with refund payments

routed to accounts under her control.

At trial, the government presented testimony by fourteen

witnesses whose names appeared on tax returns corresponding to

Counts 1, 2, 4-8, 11-14, and 16-18 of the indictment, each filed

using Anderson’s EFIN and PTIN. The witnesses testified that

they did not authorize Anderson to prepare the returns and that

they did not receive any refund payments in connection with the

3
filed returns. Moreover, they indicated that much of the

personal information listed on the returns was incorrect.

The government also called seven other witnesses, among

them Ronald Cooley, President and CEO of Brookland Federal

Credit Union (“Brookland”); Russell Sciandra, an IRS Special

Agent; and Tracy Trivison, General Manager of Receivables

Management Corporation (“RMC”), Anderson’s former employer.

Cooley testified that Anderson controlled multiple accounts at

Brookland and identified certain deposits made by the United

States Treasury into those accounts. Sciandra linked the

Treasury deposit amounts to refunds claimed on tax returns filed

using Anderson’s EFIN and PTIN. And Trivison testified that,

while working for RMC, Anderson had access to the names,

addresses, social security numbers, and dates of birth of some

of the individuals whose tax returns were filed using Anderson’s

EFIN and PTIN.

The jury found Anderson guilty on twenty of the twenty-one

counts charged in the indictment. She was acquitted only on

Count 10, a false claim charge linked to a tax return for which

the refund was deposited into a separate bank account not

referenced on any of the eighteen other returns. The individual

whose name appeared on the return associated with Count 10 did

not testify at trial.

4
 In calculating Anderson’s Guidelines sentencing range, the

Presentence Investigation Report (“PSR”) applied two

enhancements now at issue in this appeal, one for the number of

victims involved and another for the amount of loss implicated.

The PSR reported that there were nineteen victims of Anderson’s

crimes, triggering a two-level enhancement pursuant to U.S.S.G.

§ 2B1.1(b)(2), and that the intended loss amount was $437,822,

triggering a fourteen-level enhancement pursuant to U.S.S.G.

§ 2B1.1(b)(1)(H). After accounting for these enhancements, the

PSR arrived at a final Guidelines range of 65 to 75 months’

imprisonment.

Counsel for Anderson raised ten objections to the PSR, none

of which challenged the application of the aforementioned

sentencing enhancements and most of which were resolved prior to

sentencing. Anderson herself also filed a pro se objection

challenging the “entire” PSR, but her statement was directed

primarily at the jury’s finding of guilt and not at the proposed

Guidelines range. She did not raise any specific objection to

either enhancement. At the sentencing hearing, the district

court denied Anderson’s request for a variance, resolved the

outstanding PSR objections -- none of which affected the

advisory Guidelines range -- and sentenced Anderson to 75 months

of incarceration. This appeal followed.

5
 II.

Anderson first challenges the sufficiency of the evidence

supporting the jury’s guilty verdict on four of her eighteen

convictions for submitting false or fraudulent claims against

the United States. Although Anderson preserved her objection on

this issue, we note at the outset that the standard for

overturning a jury verdict is a very difficult one to meet: a

conviction will be reversed for insufficient evidence “only if

no reasonable jury could have concluded beyond a reasonable

doubt” that the defendant committed the charged crime. United

States v. Sayles, 296 F.3d 219, 223 n.1 (4th Cir. 2002). On the

other hand, if “substantial evidence” -- that is, direct or

circumstantial evidence “that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt” -- supports a

verdict, it will be upheld. United States v. Burgos, 94 F.3d

849, 862 (4th Cir. 1996) (en banc); see also United States v.

Stewart, 256 F.3d 231, 249 (4th Cir. 2001). Put otherwise, only

when the prosecution’s failure to prove its case is “clear” will

the defendant prevail in challenging a jury’s guilty verdict.

Burks v. United States, 437 U.S. 1, 17 (1978).

Anderson specifically attacks her convictions on Counts 3,

9, 15, and 19, four counts for which the government did not

present live witness testimony as to the fraudulent nature of

6
the corresponding tax returns. Notwithstanding the jury’s guilty

verdict, Anderson asserts that she is entitled to a judgment of

acquittal because “there is a total absence of evidence” with

respect to the challenged counts. Appellant’s Reply Br. 3. But

her argument is unavailing because the prosecution did present

substantial evidence of her guilt, although that evidence was

not in the form of direct witness testimony about the four

specific returns related to those counts.

It is well settled that the government is not required to

come forward with any particular form of evidence and may

proffer direct or circumstantial evidence to make its case. See

Stewart, 256 F.3d at 249 (citing Glasser v. United States, 315

U.S. 60, 80 (1942)). Here, the prosecution presented significant

circumstantial evidence demonstrating that Anderson was guilty

on Counts 3, 9, 15, and 19, and we therefore affirm her

convictions.

The tax returns associated with the four challenged counts

were remarkably similar to those associated with the fourteen

other counts on which Anderson was also convicted. All eighteen

returns contained Anderson’s EFIN and PTIN -- indicating that

she or someone acting at her instruction prepared the returns --

and each return directed the IRS to deposit the refund due into

one of two accounts controlled by Anderson. As discussed above,

the government presented direct testimonial evidence that

7
fourteen of these eighteen returns contained false information

and were filed without the authorization of the individuals

named therein, none of whom actually received the associated

refunds. That the four other returns contained the same EFIN,

PTIN, and bank account information as these fourteen is ample

circumstantial evidence from which a reasonable jury could have

concluded -- and, here, did conclude -- that Anderson was guilty

beyond a reasonable doubt on Counts 3, 9, 15, and 19.

We need not resolve the question of precisely how many

returns would, in some other case, be necessary to establish

this pattern of fraud. Rather, we need hold only that the

pattern established by direct testimony concerning the fourteen

returns unchallenged on appeal was sufficient circumstantial

evidence to justify the jury’s conclusion that the four other

remarkably similar returns were also false or fraudulent. Faced

with the government’s evidence, Anderson offered no satisfactory

explanation to the jury as to why those remaining returns were

not fraudulent. She was, of course, under no obligation to offer

such an explanation, but her failure to do so raised the risk

that the jury would accept the government’s evidence. See United

States v. Echeverri-Jaramillo, 777 F.2d 933, 938 (4th Cir. 1985)

(quoting McGautha v. California, 402 U.S. 183, 215 (1971)).

It is worth noting that the jury acquitted Anderson on

Count 10, the only count for which the corresponding tax return

8
directed the refund to a bank account not listed on any of the

eighteen other returns. The acquittal indicates that the jury

was not asleep at the wheel in this case but actually did

consider whether the evidence presented by the prosecution -- to

wit, the testimonial evidence and the marked resemblances among

the eighteen tax returns -- established Anderson’s guilt on each

individual count. The jury was convinced by the inculpatory

evidence with respect to eighteen of the charged counts, but not

by the evidence with respect to Count 10. This outcome is not

altogether surprising given that the single return in Count 10

deviated from the pattern displayed by the eighteen other

returns. That the jury apparently recognized and reacted to a

deviation from the pattern only fortifies the conclusion that

the striking conformity to that pattern of the four convictions

at issue here provided a sound basis for the jury’s verdict.

III.

Next, Anderson challenges the district court’s application

of a two-level sentencing enhancement pursuant to U.S.S.G.

§ 2B1.1(b)(2)(A) for the number of victims -- nineteen --

involved in this case. As an initial matter, we note that

neither Anderson nor her attorney objected to the PSR’s

application of this enhancement. Therefore, our review is for

plain error.

9
 Under the plain-error standard, a defendant “must establish

that the district court erred, that the error was plain, and

that it affected [her] substantial rights.” United States v.

Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation

marks and alterations omitted) (citing United States v. Olano,

507 U.S. 725, 734 (1993)). And even if a defendant meets this

heavy burden, an appellate court has “discretion whether to

recognize the error, and should not do so unless the error

seriously affects the fairness, integrity or public reputation

of judicial proceedings.” United States v. Hargrove, 625 F.3d

170, 184 (4th Cir. 2010) (internal quotation marks omitted).

Here, the district court did not commit error -- much less plain

error -- and we therefore affirm its application of the number-

of-victims enhancement.

Pursuant to U.S.S.G. § 2B1.1(b)(2)(A), a defendant is

subject to a two-level sentencing enhancement if convicted of a

theft or fraud offense involving ten or more victims. The

commentary to § 2B1.1 generally defines the term “victim” as

“(A) any person who sustained any part of the actual loss

determined under subsection (b)(1); or (B) any individual who

sustained bodily injury as a result of the offense.” U.S.S.G.

§ 2B1.1 cmt. n.1. However, if an offense “involve[s] means of

identification,” that definition is expanded to include “any

10
individual whose means of identification was used unlawfully or

without authority.” Id. cmt. n.4(E).

Anderson does not dispute that her conviction brings her

within the scope of § 2B1.1(b)(2)(A) standing alone, given that

she was convicted of using the means of identification of

eighteen different individuals to submit fraudulent tax returns.

See Appellant’s Br. 18. She argues, however, that the number-of-

victims enhancement does not apply to her because that

enhancement is based on a “specific offense characteristic,”

U.S.S.G. § 2B1.1(b)(1), and the commentary to a separate

Guidelines provision for aggravated identity theft, U.S.S.G.

§ 2B1.6 cmt. n.2, instructs a court to “not apply any specific

offense characteristic for the . . . use of a means of

identification when determining the sentence for the underlying

offense” if the defendant is also being sentenced for aggravated

identity theft -- as Anderson was here. The identity theft

sentence, so Anderson’s argument goes, is meant to account for

the unlawful use of a means of identification, such that

application of the expanded definition of “victim” in

§ 2B1.1(b)(2)(A) would “double count” the use of the stolen

identities for sentencing purposes. See Appellant’s Br. 18-19.

We decline to embrace Anderson’s reasoning. Like all of our

sister circuits to have considered the issue, we conclude

instead that § 2B1.6 does not preclude a district court from

11
imposing a number-of-victims enhancement in conjunction with a

sentence for aggravated identity theft. See United States v.

Lyles, 2012 WL 5907483, at *5 (6th Cir. 2012) (unpublished);

United States v. Manatau, 647 F.3d 1048, 1057 n.4 (10th Cir.

2011); United States v. Yummi, 408 F. App’x 537, 541 (3d Cir.

2010) (unpublished); see also United States v. Jenkins-Watts,

574 F.3d 950, 961-62 (8th Cir. 2009).

Comment 2 to the aggravated identity theft Guidelines

provision instructs a district court to refrain from applying an

enhancement only if it is triggered by a “specific offense

characteristic for the transfer, possession, or use of a means

of identification.” U.S.S.G. § 2B1.6 cmt. n.2. The most natural

reading of the comment limits its application to enhancements

linked to the nature of the offense, such as the two-level

enhancement found in § 2B1.1(b)(11)(C) that applies if an

offense involved “the unauthorized transfer or use of any means

of identification unlawfully to produce or obtain any other

means of identification.” Applying this “means of

identification” enhancement from § 2B1.1(b)(11)(C) in

conjunction with an aggravated identity theft sentence would, in

fact, augment a defendant’s sentence twice for the same

substantive conduct -- use of a means of identification. Thus,

per Comment 2, an enhancement under § 2B1.1(b)(11)(C) cannot be

imposed alongside a sentence for aggravated identity theft.

12
 By contrast, the § 2B1.1(b)(2)(A) enhancement at issue here

looks only to the number of victims of the offense. That the

term “victim” is defined to include the individuals whose means

of identification were used in the crime does not transform

§ 2B1.1(b)(2)(A) into an enhancement triggered by a “specific

offense characteristic for the transfer, possession, or use of a

means of identification.” As the Sixth Circuit has explained,

the number-of-victims enhancement “punishes the impact of the

crime, not the transfer, possession, or use of a means of

identification.” Lyles, 2012 WL 5907483, at *5. As such, the

instructions contained in Comment 2 do not bar the application

of that enhancement here.

IV.

Finally, Anderson challenges the fourteen-level sentencing

enhancement triggered by the PSR’s conclusion that her intended

loss was $437,822. As with the number-of-victims enhancement,

our review here is for plain error because neither Anderson nor

her attorney objected to the PSR’s calculation of the loss

amount or to the district court’s subsequent application of the

corresponding enhancement. After reviewing Anderson’s

contentions, we find no plain error in the district court’s

sentencing decision on this point.

13
 Although the PSR states that “[t]he facts of the case

revealed the actual loss amount was $437,822.00,” J.A. 470,

Anderson contends that she is subject to an enhancement only for

the loss of $65,911 that was found by a jury, see Appellant’s

Br. 24-25. However, it is clear that a district court may

consider facts not found by a jury when issuing a sentence

somewhere between the statutory minimum and maximum. See Harris

v. United States, 536 U.S. 545, 566 (2002). 1 Here, the district

judge made a factual finding -- based on the PSR -- that

Anderson’s intended loss amount was $437,822. That finding

triggered an enhancement but did not take Anderson’s sentence

beyond the statutory maximum for her offenses. A sentencing

judge must remain free to make run-of-the-mill factual findings

underlying advisory Guidelines enhancements without eliciting

constitutional concerns. That is all the judge did here, and the

amount-of-loss enhancement was thus permissible.

Anderson next complains that, even if the trial judge was

free to impose an enhancement based on facts not found by a

jury, the government failed to provide sufficient evidence to

1
Anderson asks us to vacate her sentence and remand the
matter in light of the Supreme Court’s grant of certiorari in
United States v. Alleyne, 457 F. App’x 348 (4th Cir. 2011)
(unpublished), cert. granted, 133 S. Ct. 420 (2012) (No. 11-
9335). However, Alleyne involves the application of mandatory
minimum sentences and is not relevant to the advisory Guidelines
enhancement dispute here.

14
support the PSR’s loss calculation of $437,822. Appellant’s Br.

21. But we must reject Anderson’s contention at the outset,

because the government is not required to present evidence

demonstrating the accuracy of facts in a PSR. See United States

v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). When challenging a

PSR, a defendant “has an affirmative duty to make a showing that

the information in the [document] is unreliable, and articulate

the reasons why the facts contained therein are untrue or

inaccurate.” Id. “Without an affirmative showing the information

is inaccurate, the court is ‘free to adopt the findings of the

[PSR] without more specific inquiry or explanation.’” Id.

(quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir.

1990)). Here, Anderson failed to make an affirmative showing

that the loss calculation in the PSR was inaccurate or

unreliable, and her objection to that calculation now must

therefore fail.

Moreover, Anderson’s argument misses the mark for a

separate reason: the record does contain unrebutted evidence

supporting the PSR’s loss calculation. We note as an initial

matter that, for Guidelines sentencing purposes, loss amount is

not limited to the actual loss resulting from the charged

conduct. Rather, the Guidelines indicate that the defendant’s

intended loss is the relevant figure when it exceeds actual

loss, U.S.S.G. § 2B1.1 cmt. n.3(A), and both charged and

15
uncharged conduct may be considered, see U.S.S.G. § 1B1.3(a) &

cmt. background. Moreover, a sentencing court need not precisely

calculate intended loss, as the Guidelines require only “a

reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C).

At trial, the government introduced certain bank statements

from Anderson’s accounts at Brookland, but was not permitted to

introduce evidence that the Treasury deposited $333,403 worth of

tax refunds into those accounts in 2008. The district judge

ruled that the government could introduce evidence of loss

associated with only the nineteen counts charged in this case.

Thus, the jury was not permitted to review the $333,403 figure,

although it is referenced in the record. 2

It is well settled, however, that the ordinary rules of

evidence do not apply in the sentencing phase of a criminal

proceeding. See 18 U.S.C. § 3661; Fed. R. Evid. 1101(d)(3).

Thus, the fact that indications of the total loss amount were

not before the jury did not bar the PSR or the trial judge from

using such evidence to determine Anderson’s sentence. Of course,

in the absence of any objection, the government had no

2
The record also indicates that the IRS was “actually able
to identify some of the refunds as fraudulent and stop them
before they went out.” J.A. 274. Therefore, it is unremarkable
that Anderson’s intended loss amount ($437,822) exceeds the
amount of fraudulent tax refund payments actually deposited into
her accounts ($333,403).

16
obligation to affirmatively establish the total loss amount

stated in the PSR in the first place. See Terry, 916 F.2d at

162. However, the ample evidentiary support for that loss

calculation only bolsters our conclusion that the district court

did not err -- much less commit plain error -- when it applied

the fourteen-level sentencing enhancement in this case.

V.

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

17
WYNN, Circuit Judge, dissenting:

To prove a violation 18 U.S.C. § 287, the government bears

the burden of establishing “two elements: 1) making or

presenting a claim to any agency of the United States 2) knowing

such claim to be false, fictitious, or fraudulent.” United

States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992). There is no

dispute that filing a tax return for a refund constitutes

“presenting a claim” to the IRS. The key issue here is whether

the government presented sufficient evidence to show that each

of the tax returns in this matter supporting an individual count

under 18 U.S.C. § 287 was “false, fictitious, or fraudulent.”

For the fourteen returns supporting Counts 1, 2, 4-8, 11-

14, and 16-18, the government presented not only the returns but

also the persons named on those returns, who testified that the

returns were unauthorized and or inaccurate. Accordingly, I

agree with the majority that the government met its burden of

proof under 18 U.S.C. § 287 as to those fourteen counts.

As to Counts 3, 9, 15, and 19, however, the government

presented only the four returns. The government essentially

argued that because these naked returns looked just like the

fourteen returns clothed by witnesses’ testimonies, they were

dressed in the requisite criminality. The majority apparently

agreed, stating that the four naked returns were “remarkably

similar” to the returns clothed by witnesses’ testimonies.

18
Supra 7. But the only similarities between the naked and

clothed returns—the tax preparer information (PTIN and EFIN) and

refund destination—show nothing inherently false or fraudulent

about the four naked returns.

Moreover, the use of the PTIN and EFIN shows only that DL

Anderson prepared the return, not that this preparation was

unauthorized. Similarly, the use of the routing number shows

only that the refund was to be deposited into an account

controlled by Anderson, not that this direction was

unsanctioned. Nor is it unlawful to direct a refund to a tax

preparer or another third party. Put simply, the tax preparer

information (PTIN and EFIN) and refund destination appear on all

returns filed by tax preparers. Indeed, based on this evidence,

the returns were just as likely honest and accurate as they were

fraudulent and false.

Further, merely associating these naked returns with the

fourteen other returns was an insufficient basis for convicting

Anderson on Counts 3, 9, 15, and 19. A pattern of conduct may

be used to connect a crime to a particular individual or

establish intent. Here, however, the pattern is not being used

to infer that it was Anderson who filed the four returns, but

that those returns were false in the first place—that there was,

in fact, a crime. See United States v. Drape, 668 F.2d 22, 26

(1st Cir. 1982) (“Appellant’s signature on his [tax] return was

19
sufficient to establish knowledge once it had been shown that

the return was false.”) (emphasis added). Yet this cannot be,

as “[t]he first presumption is that a defendant is innocent

unless and until the government proves beyond a reasonable doubt

each element of the offense charged.” Clark v. Arizona, 548

U.S. 735, 766 (2006). Drawing this inference belies the bedrock

principle of criminal law that the government bears the burden

of proving each element of an offense. In re Winship, 397 U.S.

358, 364 (“[W]e explicitly hold that the Due Process Clause

protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.”).

To be sure, the government need not have presented direct

witness testimony to demonstrate that the tax returns associated

with Counts 3, 9, 15, and 19 were false or fraudulent;

nonetheless, some evidence was required to carry the

government’s burden to prove this element—and none was

presented. Because the evidence at trial was insufficient for

any rational fact-finder to conclude beyond a reasonable doubt

that these four naked returns were false or fraudulent, I

respectfully dissent.

20