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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13679
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20876-JEM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLAND PHILIDOR,
Defendant - Appellant.
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No. 12-13724
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20876-JEM-3
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLMAN PHILIDOR,
Defendant - Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(May 29, 2013)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Alland Philidor and his brother Willman Philidor (collectively, the
“Philidors”) each pled guilty to one count of conspiracy to steal government funds,
in violation of 18 U.S.C. § 371, and one count of theft of government funds, in
violation of 18 U.S.C. § 641, for their participation in a scheme that involved
submitting fraudulent tax returns to the Internal Revenue Service using stolen
Social Security numbers, receiving refund checks from the federal government,
and depositing these proceeds in various bank accounts of corporate entities
controlled by them. The presentence investigation reports (“PSI”) indicated that
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there were thousands of victims whose Social Security numbers were fraudulently
used by the Philidors. Accordingly, the PSI recommended that a six-level
enhancement be applied to their base offense level because the offense involved
250 or more victims. United States Sentencing Commission, Guidelines Manual, §
2B1.1(b)(2)(C) (Nov. 1, 2012). The PSI also noted that the government had only
positively identified twenty-six of the taxpayer victims.
The Philidors objected to the statements in the PSI concerning the number of
victims and the six-level enhancement. Although they conceded that the
government’s discovery materials identified more than 250 Social Security
numbers that were used to file over 250 fraudulent tax returns for which they
received proceeds, the Philidors argued that the government failed to meet its
burden to show that the offense involved 250 actual, living victims. The District
Court overruled the objection and imposed a sentence incorporating the six-level
enhancement.
The Philidors appealed their sentence, each raising the same issue, and we
consolidated their appeals. They argue that the District Court erred in imposing
the § 2B1.1(b)(2)(C) enhancement because the government did not show by a
preponderance of the evidence that 250 of the listed Social Security numbers were
authentic and belonged to living people. Upon review of the record and
consideration of the parties’ briefs, we affirm the District Court.
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We review a district court’s factual findings for clear error. United States v.
Gupta, 572 F.3d 878, 887 (11th Cir. 2009). The district court may rely on
undisputed facts contained in the PSI in determining a sentence. United States v.
Bennett, 472 F.3d 825, 832 (11th Cir. 2006). But when a defendant challenges one
of the factual bases of his sentence, the government has the burden of proving the
disputed fact by a preponderance of the evidence. Gupta, 572 F.3d at 887. A fact
finding is clearly erroneous when, after reviewing all the evidence, the court “is
left with the definite and firm conviction that a mistake has been committed.” Id.
The Sentencing Guidelines provide for a six-level increase to a base offense
level if the crime involves 250 or more victims. U.S.S.G. § 2B1.1(b)(2)(C). For
the purposes of § 2B1.1, “victim” means “any person who sustained any part of the
actual loss” attributed to the crime. Id. comment. (n.1) (application note). In cases
involving means of identification, such as a Social Security number, “victim” also
includes “any individual whose means of identification was used unlawfully or
without authority.” Id. comment. (n.4(E)) (application note). A means of
identification must be of an “actual (i.e., not fictitious) individual.” Id. comment.
(n.1); see 18 U.S.C. § 1028(d)(7) (a means of identification must be able to be used
“to identify a specific individual”).
The District Court did not clearly err in finding that there were 250 or more
victims affected by the Philidors’ crime. The undisputed portions of the PSI
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indicate that the Philidors’ bank statements list over 250 Social Security numbers
and that these numbers correspond to tax refunds issued based on fraudulently
submitted tax returns. Based on the fact that the Internal Revenue Service issued
refunds for tax returns listing those numbers, the District Court made the legitimate
inference that the Social Security numbers corresponded to actual persons. See
United States v. Chavez, 584 F.3d 1354, 1367 (11th Cir. 2009) (stating that the
district court is “free to make” reasonable inferences but cannot rely on an
inference that is “speculative to the point of being clearly erroneous”). As we have
said in the context of government-issued identification, it is not necessary to
present proof that the government verifies an individual’s identity before it issues a
driver’s license or passport, because it is reasonable to conclude, “based on
ordinary human experience,” that the government “routinely obtain[s] an
applicant’s identity to verify the authenticity of that identity.” United States v.
Doe, 661 F.3d 550, 563 (11th Cir. 2011) (internal quotation marks omitted); see
United States v. Gomez-Castro, 605 F.3d 1245, 1249 (11th Cir. 2010) (stating that,
to infer that governments verify the identity information they require applicants to
provide, “no special proof is required; a trier of fact can rely on common sense”).
Here, likewise, the District Court could infer, based on common sense and ordinary
human experience, that the Internal Revenue Service verifies identifying
information, like Social Security numbers, before issuing a tax refund.
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Accordingly, the fact that the Internal Revenue Service paid the refunds to the
Philidors indicates that the Social Security numbers used to procure those refunds
are associated with real people. The District Court’s conclusion was not clearly
erroneous.
Finally, the District Court did not err in applying the § 2B1.1(b)(2)(C)
enhancement without first finding that the victims were living. The language in
the sentencing guidelines is to be given its plain and ordinary meaning. United
States v. Pompey, 17 F.3d 351, 354 (11th Cir. 1994). A victim in this context is a
person whose means of identification was used unlawfully. A “means of
identification” is limited to “an actual (i.e., not fictitious) individual.” U.S.S.G. §
2B1.1 comment. (n.1). Because “i.e.” is an abbreviation for “that is,” the plain
meaning of the language used by Congress was that “not fictitious” was the
exclusive definition for “actual.” See Black’s Law Dictionary 749 (7th ed. 1999).
We recently came to a similar conclusion in the context of the aggravated identity
theft statute, 18 U.S.C. § 1028A(a)(1). See United States v. Zuniga-Arteaga, 681
F.3d 1220, 1223 (11th Cir. 2012) (concluding that 18 U.S.C. 1028A(a)(1)
“punishes theft of the identity of an actual person, regardless of whether that
person is still alive”). Accordingly, the plain meaning of the phrase “actual” does
not distinguish between living and deceased persons.
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We find no error in the District Court’s application of the § 2B1.1(b)(2)(C)
enhancement. The sentence imposed by the District Court is
AFFIRMED.
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