United States v. Ambort

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 3 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 03-4243
ERNEST GLENN AMBORT,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:98-CR-197-01-DB)

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack,
Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for
Defendant - Appellant.

Brian Galle, Attorney (Alan Hechtkopf, Attorney, with him on the briefs), Tax
Division, Department of Justice, Washington, D.C., for Plaintiff - Appellee.

Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.

ANDERSON, Circuit Judge.
 Defendant Ernest Glenn Ambort appeals his conviction and sentence

following a jury trial on one count of conspiracy to defraud the United States by

assisting in the preparation of false tax returns, in violation of 18 U.S.C. § 371,

and sixty-nine counts of aiding and assisting in the preparation of false federal tax

returns, in violation of 26 U.S.C. § 7206(2). We affirm.

BACKGROUND

We take the following facts from one of our prior opinions in this case: 1

The conspiracy count alleges that Defendants operated an
organization known as “Association de Libertas” (ADL) that
conducted “constitutional history seminars” throughout the United
States. It further alleges that ADL leaders falsely told the seminar
attendees that they were “nonresident aliens” exempt from most
federal income taxes. For a fee of $1,500 to $1,600 for “forms
training,” ADL instructors taught the attendees how to complete an
amended return form (Form 1040X) and/or a nonresident alien
income tax return form (Form 1040NR), falsely claiming a refund for
past years’ taxes. In addition to the above fee, ADL also required
one-third of any refund. To ensure payment, the mailing address of
an ADL instructor or “escrow agent” appeared on the amended
returns. The false return counts allege that the Defendants assisted
in preparation of tax returns that were false and fraudulent as to a
material matter, specifically classifying the taxpayers as nonresident

1
Ambort and three co-defendants previously appealed an order of the
district court denying their motion to dismiss the indictment. We dismissed the
appeal for lack of jurisdiction. United States v. Ambort, 193 F.3d 1169 (10th Cir.
1999). He attempted another unsuccessful interlocutory appeal and request for
mandamus relief. United States v. Ambort, Nos. 01-4077, 01-4078, 01-4079,
2002 WL 1647232 (10th Cir. July 24, 2002), cert. denied, 537 U.S. 1076 (2002).

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 aliens when the taxpayers were in fact residents of the United States
subject to taxation and not entitled to the refunds claimed.

United States v. Ambort, 193 F.3d 1169, 1170-71 (10th Cir. 1999).

ADL participants could also pay $2500 to attend an “instructors” seminar.

All payments for seminars were made in cash, money order, or cashier’s check.

An ADL representative told one of the participants that the cash-only policy was

used because cash could not be traced by the government. Graduates of the

“instructors” seminars were eligible to enroll new clients in ADL and would

receive a portion of the fees the new enrollees paid.

The basic precept of the ADL’s seminars was that anyone can, for federal

income tax purposes, claim to be a “nonresident alien” with no domestic-source

income. ADL instructors told participants that the Fourteenth Amendment

changed the definition of citizenship so that only non-white residents of the

territorial United States were actually “residents” for income tax purposes. Thus,

Ambort and his co-defendants told customers that they were to claim on their

income tax returns that they were nonresident aliens, regardless of their place of

birth, and to write “n/a” in the place where the tax forms asked for the taxpayer’s

social security number. They also told customers that they could use IRS Form

1040X to file a corrected return for the previous three tax years, assert

nonresident status for each year, and obtain a full refund of any taxes paid or

withheld for that period.

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 Ambort was aware that the ADL position was not accepted law, and that the

IRS had rejected it. He was aware that tax returns submitted by numerous ADL

clients had been returned as frivolous by the IRS and had incurred penalties.

Ambort was tried and convicted by a jury, along with three of his alleged

co-conspirators. The district court ordered Ambort detained pending sentencing.

This court affirmed the district court’s order denying his request for release

pending sentencing and appeal. United States v. Ambort, No. 03-4117, 2003 WL

21685825 (10th Cir. July 18, 2003). The United States Supreme Court denied

Ambort’s petition for a writ of habeas corpus seeking his release pending appeal.

In re Ambort, 124 S. Ct. 356 (mem.) (Oct. 6, 2003). The district court

subsequently sentenced Ambort, pursuant to the United States Sentencing

Commission, Guidelines Manual (“USSG”), to 108 months’ imprisonment, the top

end of Guideline range, followed by five years of supervised release.

In this fourth appearance before our court, Ambort argues (1) the district

court erred by improperly limiting the scope of his good faith defense; (2) the

district court erred in refusing to grant his motion to dismiss the indictment; and

(3) the district court erred in enhancing his offense level based upon various

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judge-found facts, in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004),

and United States v. Booker, 125 S. Ct. 738 (2005). 2

DISCUSSION

I. Good Faith Defense

Ambort was charged with “willfully aid[ing] and assist[ing]” in the

preparation of false income tax returns and with conspiring with others to do so.

In the context of criminal tax statutes, the standard for willfulness “requires the

Government to prove that the law imposed a duty on the defendant, that the

defendant knew of this duty, and that he voluntarily and intentionally violated that

duty.” Cheek v. United States, 498 U.S. 192, 201 (1991); see United States v.

Guidry, 199 F.3d 1150, 1156 (10th Cir. 1999); United States v. Willie, 941 F.2d

1384, 1392 (10th Cir. 1991).

Ambort does not, and cannot, argue that he has a good faith belief that he is

a nonresident alien not subject to taxation. We have specifically said as much,

and Ambort concedes that his argument has been repeatedly rejected. See Ambort

v. United States, 392 F.3d 1138, 1140 (10th Cir. 2004) (“The federal courts have

long rejected Ambort’s rationale for lack of tax liability.”); Benson v. United

2
Both parties have filed supplemental briefs on the effect of Blakely. As
indicated, infra, we consider the effect of Blakely in light of Booker.

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States, Nos. 94-4182, 95-4061, 1995 WL 674615, at **3 (10th Cir. Nov. 13,

1995) (unpublished) (“Mr. Ambort’s argument that he is a nonresident alien not

subject to taxation is frivolous.”); 3 R. Vol. XXVII at 898. He argues that he has a

good faith belief that he was pursuing the proper procedure to attempt to change

that law. He relies upon the following passage from Cheek: “There is no doubt

that Cheek, from year to year, was free to pay the tax that the law purported to

require, file for a refund and, if denied, present his claims of invalidity,

constitutional or otherwise, to the courts.” Cheek, 498 U.S. at 206. Ambort thus

claims that he and the people he counsels in the ADL seminars are simply

following the procedure outlined in Cheek, which demonstrates that they did not

act willfully: “[I]f a defendant has a good faith belief that he is using the proper

procedure for challenging the tax laws, he has not acted wilfully under Cheek.”

Appellant’s Opening Br. at 9.

Ambort claims the district court impermissibly restricted his right to

present that good faith defense by excluding as irrelevant certain testimony. In

particular, at several times during their trial, Ambort and his co-defendant, John

Benson, talked about the procedures they were employing and were urging others

to employ (pay the tax assessed, file for a refund, and seek further relief in court

While we ordinarily do not cite unpublished opinions, we do so here
3

because it directly relates to this case. See 10th Cir. R. 36.3.

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if the refund was denied) to challenge the established law as to who is a resident

subject to taxation. On one occasion, the court responded to Ambort’s testimony

as follows:

Let me interrupt here.
I am going to give you the instructions of the law in a little
while, not that long from now, but I do want you to understand what
are and are not proper defenses. It is a proper defense to the crimes
charged here for the defendants to claim that they had a good faith
belief that what they were advocating was lawful even though it
wasn’t. A good faith belief is a defense.
Even a good faith belief that resorting to knowing criminal
activity as a method of gaining access to the court system is not a
defense to a crime. I don’t want there to be any confusion on that.

R. Vol. XXVIII at 1120-21. On another occasion, co-defendant Benson stated

that he was “trying to explain why we gave the seminars and that is the same

reason why when the tax court ruled against us that that has to happen if you’re

going to get that case up to the Supreme Court eventually and that is the system.”

R. Vol. XXVII at 961. The court responded “[n]ow, I am going to strike that

from the record. I am going to strike that statement to the extent that it is trying

to tell the jury what the system was. It is hard for me to see that that is relevant,

you telling the jury that that is the system.” Id.

Later in Benson’s testimony, the following exchange occurred:

MR. BENSON: [A]s I read Section 7422 of the Internal Revenue
Code it provided that instead of going against the collector you
would bring your action against the government. It substituted the
government in lieu of the collector. But they also said before you

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 could go against the government you had to first go through an
administrative step of filing your claim for a refund.

MR. BAILEY [Government counsel]: Your Honor, I object. We
seem to be getting away from the issues.

THE COURT: The objection is on what basis?

MR. BAILEY: Relevance.

THE COURT: Sustained.

MR. BENSON: Well, at any rate, I relied on my reading of Section
7422 as the right as an administrative—

MR. BAILEY: Same objection, Your Honor.

THE COURT: Mr. Benson, let me explain something about the law
of evidence to you.
When I sustain an objection and find something irrelevant then
you’re [sic] next phrase cannot be, at any rate, and then you go right
back into the same subject.

MR. BENSON: I was simply—

THE COURT: You may disagree with my ruling but it is the ruling
and you have to move on to a different subject.

R. Vol. XXVIII at 1018-19. Ambort argues “[w]ith these rulings, the district

court effectively precluded defendants from presenting and arguing the nature of

their good faith in filing their claims.” Appellant’s Opening Br. at 15.

Neither Ambort nor Benson objected to the district court’s evidentiary

rulings, so our review is limited to determining whether the court’s rulings were

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plain error. 4 See United States v. Ramirez, 348 F.3d 1175, 1181 (10th Cir. 2003).

To establish plain error, Ambort must show that there is “(1) an error; (2) that is

plain or obvious; (3) that affects his substantial rights; and (4) that seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1329 (10th Cir. 2003).

We conclude that the district court did not err, let alone commit plain error,

when it excluded as irrelevant Ambort’s or Benson’s testimony on their good faith

belief that they were pursuing the proper procedure to challenge the established

law. The fundamental premise of Ambort’s ADL teachings was that certain

people could claim to be “nonresident aliens” not subject to the tax laws. Ambort

knew that that viewpoint was contrary to well-established law. He cannot

disguise his knowing disregard of well-established legal principles and duties as a

good faith procedural effort to evade those principles and duties. As the Court

stated in Cheek, “a defendant’s views about the validity of the tax statutes are

irrelevant to the issue of willfulness and need not be heard by the jury, and, if

they are, an instruction to disregard them would be proper.” Cheek, 498 U.S. at

206. That is precisely what the district court did in this case.

4
Ambort argues that he really is objecting to the district court’s rulings on
the scope of the defense he attempted to present. He argues that we should
review that issue de novo. Under any standard of review, we would uphold the
district court’s rulings.

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 Moreover, while Ambort places great reliance upon other language in

Cheek stating that a taxpayer may challenge the tax laws by filing for a refund

and appealing the denial of the refund to the courts, we have already reminded

Ambort that “[a]n important qualification, made throughout the passage [in

Cheek, referring to this “safe harbor” mechanism], however, is that a taxpayer

also must be willing ‘to accept the outcome.’” Ambort, 193 F.3d at 1171 n.1

(quoting Cheek, 498 U.S. at 206). In any event, “Cheek simply does not address

any right to enlist and prepare returns on behalf of others, as alleged in this case.”

Id.

II. Denial of Motion to Dismiss Indictment

Ambort, adopting the argument in co-defendant Benson’s brief, argues that

the district court erred when it denied his motion to dismiss the indictment.

Neither Ambort’s nor Benson’s briefs indicate which precise motion or motions

are challenged. We therefore assume that the government’s assessment is correct:

[I]t appears that [Ambort] is referring to the defendants’ joint motion
to dismiss filed April 24, 2000, in which they contended, as here . . .
that 26 U.S.C. [§] 7206 was overbroad as applied to their conduct,
because it allegedly infringed on their putative First Amendment
right to petition the government for redress. . . . Benson’s brief also
raises some arguments first presented to the District Court in
[Ambort]’s September 26, 2000 motion to dismiss. . . . In that
motion, [Ambort] asserted, as he does now . . . that § 7206 does not
make criminal inaccurate statements of a legal position and that the
indictment therefore failed to state an offense.

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Appellee’s Br. at 11.

“Generally, we review the grant or denial of a motion to dismiss an

indictment for an abuse of discretion. However, when the dismissal involves

issues of statutory interpretation, or when the sufficiency of a charge is

challenged, we review the district court’s decision de novo.” United States v.

Giles, 213 F.3d 1247, 1248-49 (10th Cir. 2000) (citing United States v. Wood, 6

F.3d 692, 694 (10th Cir. 1993)). “We test the indictment ‘solely on the basis of

the allegations made on its face, and such allegations are to be taken as true.’”

United States v. Reitmeyer, 356 F.3d 1313, 1316-17 (10th Cir. 2004) (quoting

United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994)).

Ambort makes two arguments here: first that the government’s prosecution

of him has denied him his First Amendment right to petition for redress; and

second, that, because he was following, and was encouraging others to follow, the

“safe harbor” mechanism described in Cheek (to pay the tax, file for a refund and,

if denied, petition the courts), and because the tax returns in question were

accompanied by correct information, the indictment against him should have been

dismissed because his conduct was not criminal under § 7206.

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 A. First Amendment

As the government correctly points out, the First Amendment provides no

protection for knowingly fraudulent or frivolous claims. “The first amendment

interests involved in private litigation . . . are not advanced when the litigation is

based on intentional falsehoods or on knowingly frivolous claims.” Bill

Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983) (citing Thomas

A. Balmer, Sham Litigation and the Antitrust Laws, 29 Buff. L. Rev. 39, 60

(1980)). The indictment alleged that Ambort and his co-defendants conspired to

defraud the IRS by assisting in the filing of false tax returns and that, in

particular, they told their ADL seminar attendees that they were “nonresident

aliens” who were exempt from most United States income taxes, when “in truth

and in fact as defendants . . . well knew. . . the . . . taxpayers were not.”

Indictment at 6-7, R. Vol. I. Claiming that they were actually pursuing in good

faith what they believed was the proper procedure to attempt to evade the

consequences of their intentional and knowing fraud does not somehow bring

their conduct within the First Amendment’s protection. As we have

acknowledged, “the right to petition is not an absolute protection from liability.”

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 208 F.3d 885, 891 (10th

Cir. 2000).

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 B. Criminal Conduct Under § 7206

Ambort also appears to argue that “[c]riminal tax law does not and cannot

reach differences in legal positions” and that the conduct alleged in the

indictment “is not a crime.” Appellant Benson’s Br. at 8, 16. He alleges that the

tax returns in question were all submitted with correct information on them, but

that he (and the taxpayers whose refunds he had helped prepare) simply came to a

different legal conclusion as to their residency. He thus claims that his conduct

did not constitute a crime under 26 U.S.C. § 7206(2).

The indictment alleged, as § 7206 requires, that Ambort conspired to and

aided others in filing tax returns that were “false and fraudulent as to material

matters.” Indictment at 2, 6, R. Vol. I. The returns asserted that the taxpayers

were nonresident aliens, when in fact, as Ambort knew, they were not nonresident

aliens under well-established tax law principles. It is irrelevant that the returns

may have also included information from which the IRS could, and in fact did,

determine that the representation of residency status was false. The fact that the

scheme ultimately failed to fool the IRS does not vitiate the fraudulent nature of

the scheme.

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III. Sentencing Issues

In sentencing Ambort, the district court determined that his base offense

level was nineteen, based upon an amount of loss exceeding $2.5 million but less

than $5 million. The court then added two points for deriving substantial income

from the enterprise, two points for the use of sophisticated means, two points for

being in the business of assisting people in the filing of tax returns, and four

points for being a leader and organizer, resulting in a Guidelines range of 87-108

months. The court sentenced Ambort to 108 months, the high end of the range.

In his opening brief on appeal, filed on May 7, 2004, Ambort argued only

that the district court erred in enhancing his offense level by two points under

USSG §2T1.1(b)(2) because “sophisticated means were used to impede discovery

of the nature or extent of the offense.” After his opening brief was filed, and

while his appeal was pending, the Supreme Court held in Blakely v. Washington,

542 U.S. __, 124 S. Ct. 2531 (2004), that, “in a state prosecution the Sixth

Amendment requires that the maximum permissible sentence in a given case must

be determined solely by reference to ‘facts reflected in the jury verdict or

admitted by the defendant.’” United States v. Gonzalez-Huerta, No. 04-2045,

2005 WL 807008, at *1 (10th Cir. Apr. 8, 2005) (en banc) (quoting Blakely, 124

S. Ct. at 2537). In United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005),

the Court applied Blakely’s rationale to the federal sentencing guidelines: “[a]ny

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fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Id. at 756. To remedy this constitutional infirmity the Court

held the Guidelines are advisory. Booker applies to all cases pending on direct

review. Id. at 769.

Ambort argues that under Blakely, his total offense level should be

fourteen, not twenty-nine, as the district court found, because he claims the

district court enhanced his base offense level after finding various factors which

were not contained in the indictment, admitted by Ambort, or submitted to the

jury. We consider that argument in light of Booker.

Because the district court judge enhanced Ambort’s sentence based upon

judge-found facts, Ambort presents a Sixth Amendment constitutional error under

Booker. See Gonzalez-Huerta, 2005 WL 807008, at *2 (discussing difference

between Booker constitutional error and Booker non-constitutional error).

Although Ambort challenged the evidentiary basis for the judge-found facts as to

the sentencing enhancements, he did not argue at trial that the use of the

Guidelines violated the Constitution. See United States v. Dazey, Nos. 03-6187,

03-6205, 03-6208 & 03-6228, 2005 WL 846227, at *19 (10th Cir. Apr. 13, 2005).

Because he failed to raise this issue below, we review for plain error. Gonzalez-

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Huerta, 2005 WL 807008, at *3; cf. Booker, 125 S. Ct. at 769 (“[W]e expect

reviewing courts to apply ordinary prudential doctrines, determining, for example,

whether the issue was raised below and whether it fails the ‘plain-error’ test.”).

“Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Gonzalez-Huerta, 2005 WL 807008, at

*3 (further quotation omitted). “We conduct this analysis ‘less rigidly when

reviewing a potential constitutional error.’” Dazey, 2005 WL 846227, at *19

(quoting United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001)).

Under Booker it is clear that the district court erred when it sentenced

Ambort, and that error is plain. See Gonzalez-Huerta, 2005 WL 807008, at *3;

Dazey, 2005 WL 846227, at **19-20. We turn to the “more difficult question” of

“whether the constitutional error in [Ambort’s] case affects his substantial

rights.” Dazey, 2005 WL 846227, at *20. To affect the defendant’s substantial

rights, “the error must have been prejudicial: It must have affected the outcome

of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734

(1993). Ambort bears the burden of making this showing. Gonzalez-Huerta,

2005 WL 807008, at *3; see also United States v. Vonn, 535 U.S. 55, 63 (2002).

To meet this burden, Ambort must show “‘a reasonable probability that, but for

the error claimed, the result of the proceeding would have been different.’”

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Gonzalez-Huerta, 2005 WL 807008, at *3 (quoting United States v. Dominguez

Benitez, 524 U.S. 74, 124 S. Ct. 2333, 2339 (2004)).

We have recently stated:

In a case of constitutional Booker error, there are at least two ways a
defendant can make this showing. First, if the defendant shows a
reasonable probability that a jury applying a reasonable doubt
standard would not have found the same material facts that a judge
found by a preponderance of the evidence, then the defendant
successfully demonstrates that the error below affected his
substantial rights. This inquiry requires the appellate court to review
the evidence submitted at the sentencing hearing and the factual basis
for any objection the defendant may have made to the facts on which
the sentence was predicated. Second, a defendant may show that the
district court’s error affected his substantial rights by demonstrating
a reasonable probability that, under the specific facts of his case as
analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the
district court judge would reasonably impose a sentence outside the
Guidelines range.

Dazey, 2005 WL 846227, at *20 (footnotes omitted). Ambort cannot satisfy

either test, nor does he demonstrate in any other way that his substantial rights

were affected.

Under the 1991 Guidelines applicable to Ambort’s offense, the district

court determined Ambort caused a tax loss of more than $2.5 million, but less

than $5 million, which was less than that recommended by the probation office in

the PSR. While Ambort challenged that figure at his sentencing, the district court

concluded that it “can without any hesitation find beyond a preponderance of the

evidence that [the government] justif[ies] $2.6 million.” R. Vol. XXXI at 28.

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When the question of the amount of loss arose again later in the sentencing

proceeding, and the district court indicated a willingness to take a recess to

conduct further investigation into the proper amount of loss, defense counsel

declined, stating “we understand how you have arrived at that and we understand

you are giving the benefit to the defendants in one regard. . . . We will go ahead

and submit it on that.” Id. at 60. His concession at sentencing renders the

amount of the loss as determined by the district court an admitted fact. Not

surprisingly, Ambort did not challenge that finding in his initial appellate brief.

Ambort also contested the leader or organizer enhancement, claiming that

the ADL participants were “kind of a loose collection of people, each of whom

sort of had a role, and there is no question that Mr. Ambort in some way managed

things . . . but I don’t see those attributes of a true leader or organizer.” R. Vol.

XXXI at 15. The district court rejected that argument, finding:

[a]s to role in the offense, I think that it is clear. Mr. Ambort by his
own admission he was A.D.L. and he organized it, he spoke on the
videotape, he spoke frequently about it, and his was the mailing
address in Oregon where information was sent and he hired people to
work for the organization. It was definitely in excess of the five
persons required to qualify Mr. Ambort for four points as being an
organizer or leader.

Id. at 66. Ambort again did not initially challenge that finding on appeal, and the

record overwhelmingly supports that finding.

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 Ambort further contested the two-point enhancement for deriving

substantial income from the enterprise and the two-point enhancement for being

in the business of preparing or assisting in the preparation of tax returns. The

district court found that it was “clear that [Ambort] received basically his entire

livelihood” from his criminal enterprise, and that he clearly assisted in the

preparation of tax returns. Id. at 60-61. Ambort did not challenge either one of

those findings in his initial appellate brief, and the record overwhelming supports

them.

Finally, the enhancement Ambort challenges most vigorously, and the only

enhancement he challenged in his initial appellate brief, is the two-point

enhancement for the use of sophisticated means. The 1991 Guidelines stated that

“[i]f sophisticated means were used to impede discovery of the nature or extent of

the offense, increase [the base offense level] by 2 levels.” USSG §2T1.1(b)(2)

(1991). The commentary provides that “‘[s]ophisticated means,’ as used in

§2T1.1(b)(2), includes conduct that is more complex or demonstrates greater

intricacy or planning than a routine tax-evasion case. An enhancement would be

applied for example, where the defendant used offshore bank accounts, or

transactions through corporate shells.” USSG §2T1.1(b)(2), comment. (n.6).

At sentencing, Ambort contested the factual basis for the district court’s

enhancement for use of sophisticated means, arguing that the ADL seminars were

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advertised and conducted in the open, and really espoused a simple idea about tax

liability. The district court rejected Ambort’s argument, finding that Ambort had

employed “sophisticated means,” including:

the overall operation of this program that was designed to provide a
basis that someone could articulate later on for trying to explain to
someone else why they, A, thought they were a non-resident alien
and entitled to that status tax filing and, B, what history and case law
precedent and all of the rest supported that belief. As a third element
that it was genuinely held.

R. Vol. XXXI at 62. The court further explained:

The fact that the seminars included information about how not to
include proper addresses and not to include Social Security numbers
which would allow the taxpayer to be more quickly traced, the use of
the symbols N.A. . . . instead of a Social Security number, and the
reasons why it shouldn’t be on there, are just other examples of why
sophisticated means were used to impede discovery of the nature or
extent of the offense.

Id. The record amply supports the district court’s conclusion.

Even “[t]aking the requisite ‘less rigid[]’ approach appropriate to

constitutional error,” Dazey, 2005 WL 846227, at *22, we conclude that Ambort

has failed to show a reasonable probability that a jury evaluating the above

evidence and applying a reasonable doubt standard would not have found the

same material facts that the district court found with respect to Ambort’s offense.

The only enhancement which Ambort seriously contests on appeal is the one for

the use of sophisticated means, and we conclude that the record overwhelming

supports the application of that enhancement. See United States v. Riccardi, No.

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03-3132, 2005 WL 896430, at *20 (10th Cir., Apr. 19, 2005) (“The plethora of

evidence supporting the district court’s factual findings strongly suggests that

these findings were correct.”).

We further conclude that there is no “reasonable probability that if the

district judge had not thought himself bound by the mandatory Guidelines to

sentence in accordance with these judge-found, preponderance-of-the-evidence

facts,” he might have determined that Ambort’s conduct warranted a sentence

lower than that imposed. Id. We observed in Dazey that a defendant might make

such a showing “if during sentencing the district court expressed its view that the

defendant’s conduct, based on the record, did not warrant the minimum

Guidelines sentence.” Id. at *20. Nothing in the record in this case suggests that

the district court, sentencing post-Booker under a discretionary system, would

have imposed a lesser sentence, regardless of whether it found the identical

enhancements appropriate. 5 Indeed, the court sentenced Ambort at the top of the

Guideline range, although the court could have sentenced him anywhere within

5
As we have recently acknowledged, “the Supreme Court’s holding in
Booker would not have prohibited the district court from making the same factual
findings and applying the same enhancements and adjustments to [defendant’s]
sentence as long as it did not apply the Guidelines in a mandatory fashion.”
United States v. Lawrence, No. 02-1259, 2005 WL 906582, at *12 (10th Cir.
Apr. 20, 2005); see also Dazey, 2005 WL 846227, at *21 (noting that
constitutional Booker error “is the use of extra-verdict enhancements in a
mandatory guidelines system”).

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that range. See Riccardi, 2005 WL 896430, at *20 (noting that sentence at the top

of the Guideline range supported the conclusion that the defendant’s substantial

rights were not violated); United States v. Lawrence, No. 02-1259, 2005 WL

906582, at *12 (10th Cir. Apr. 20, 2005) (noting that the district court’s

imposition of a sentence two months above the bottom of the range supported the

conclusion that the defendant failed to show that his sentence would “likely

change to a significant degree if [the case] were returned to the district court for

discretionary resentencing” for purposes of meeting the fourth prong of plain-

error review). The district court gave no indication that it felt constrained in any

way by the Guidelines, or in any way inclined to impose a different sentence.

In sum, because Ambort has failed to “show a reasonable probability that

either the factual predicate for sentencing would be different if the district court

were not required to sentence on the basis of judge-found, preponderance-of-the-

evidence facts, or that the ensuing sentence would be different if the court were

entitled to greater latitude in considering the sentencing factors of 18 U.S.C.

§ 3553(a), there is no basis for concluding that the error affected his substantial

rights.” Dazey, 2005 WL 846227, at *21. We accordingly hold that Ambort has

failed to establish that his substantial rights were violated by the district court’s

erroneous mandatory enhancement of his offense level and subsequent sentence

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selection. We therefore do not consider whether we need to notice any such

error. 6

CONCLUSION

For the foregoing reasons, we AFFIRM Ambort’s conviction and sentence.

We note that, in Gonzalez-Huerta, we stated that we need not address the
6

third prong of plain-error review if we conclude that the defendant could not
satisfy the fourth prong by demonstrating that the district court’s error seriously
affected the fairness, integrity, or public reputation of judicial proceedings.
Gonzalez-Huerta, 2005 WL 807008, at *6; see also United States v. Lawrence,
No. 02-1259, 2005 WL 906582, at *12 (10th Cir. Apr. 20, 2005). However, we
see no reason not to resolve a case on the ground that the defendant failed to
show that his substantial rights were affected, if the record makes it clear, as in
this case, that the defendant has failed to meet his burden to show such an effect.

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