[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12532 December 13, 2005
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-60095 CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CINDI M. SMITH,
DAVID R. HARVEY,
WARREN G. MILLER,
Defendants,
THAER M. AYOUB,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Florida
(December 13, 2005)
Before DUBINA and KRAVITCH, Circuit Judges, and STROM*, District Judge.
PER CURIAM:
This case originally began as a multi-defendant criminal case; however, the
government dismissed its appeal against several defendants in the case, and all that
remains is Thaer M. Ayoub’s (“Ayoub”) cross-appeal.
The following issues are presented for appellate review:
(1) Whether the conspiracy count should have been dismissed as
duplicitous.
(2) Whether the evidence presented at trial was sufficient to prove Ayoub
guilty of the conspiracy count.
(3) Whether the district court correctly calculated Ayoub’s criminal history
category, U.S.S.G. § 4A1.1.
(4) Whether the district court correctly denied Ayoub a mitigating-role
reduction, U.S.S.G. § 3B1.2.
(5) Whether the district court committed plain reversible error in sentencing
Ayoub pursuant to a mandatory guideline scheme and on the basis of facts not
admitted nor proven beyond a reasonable doubt.
______________________
*Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by
designation.
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Thaer M. Ayoub appeals his conviction for conspiracy to defraud the United
States, 18 U.S.C. § 371, and his sentences for the conspiracy conviction and for
aiding and assisting in the preparation of a false document, 26 U.S.C. § 7206(2).1
Concerning the conspiracy conviction, Ayoub argues that (1) the conspiracy count,
which alleged both tax fraud and a coverup thereof, was duplicitous and should
have been dismissed; and (2) the evidence presented at trial was insufficient to
sustain the finding of guilt. Regarding his sentences, Ayoub contends that (1) the
district court incorrectly calculated his criminal history category by (a) adding one
point for a driving-under-the-influence conviction for which he was convicted
more than ten years before he committed the instant offenses; and (b) adding two
points for committing the conspiracy offense while serving probation for a second
drunk driving conviction; (2) the court erred in denying him a mitigating-role
reduction; and (3) his sentence was imposed in violation of the Sixth Amendment,
as set forth in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005).
The conspiracy offense set forth in the indictment properly alleged multiple
means to achieve the objective of defrauding the government. Moreover, the
evidence adduced at trial was sufficient to sustain the conspiracy conviction. The
1
Ayoub does not appeal his aiding and assisting conviction.
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district court did not clearly err in finding that Ayoub’s role was not minor nor that
he committed the conspiracy offense while serving probation. The record
demonstrates that Ayoub committed both offenses of conviction within ten years
of his first drunk driving offense. Thus, the district court correctly applied that
criminal history point which resulted in an increase in Ayoub’s criminal history
category.
Finally, Ayoub fails to demonstrate that any plain Booker error affected his
substantial rights.
Accordingly, we affirm Ayoub’s convictions and sentences.
AFFIRMED.
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