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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