           Case: 14-14874    Date Filed: 09/11/2015   Page: 1 of 9


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14874
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:14-cr-00058-RBD-DAB-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

versus

TANYA M. FOX,

                                                      Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 11, 2015)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Tanya M. Fox appeals her 240-month sentence, imposed after a jury

convicted her of 26 charges related to a tax fraud scheme, including conspiracy to

defraud the United States by filing false tax returns, 18 U.S.C. § 286; wire fraud,

18 U.S.C. §§ 2 and 1343; theft of government property, 18 U.S.C. §§ 2 and 641;

and aggravated identity theft, 18 U.S.C. §§ 2 and 1028A. On appeal, Ms. Fox

argues that the district court erred in calculating her total sentence because it failed

to state with sufficient particularity the factual basis for its application of (1) a six-

level enhancement based on the number of victims under U.S.S.G. §

2B1.1(b)(2)(C), and (2) a two-level enhancement for sophisticated means under

U.S.S.G. § 2B1.1(b)(10)(C). After review of the record and the parties’ briefs, we

affirm Ms. Fox’s sentence. We remand, however, for the limited purpose of

correcting a clerical error in the judgment.

                                            I

      A jury convicted Ms. Fox of 26 charges related to a massive tax fraud

scheme. The presentence investigation report provides the following general facts,

to which Ms. Fox did not object at sentencing. Ms. Fox owned “1 Man at Large

Accounting,” a tax service business in Orlando, Florida. She used her business to

file false tax returns. Ms. Fox also recruited several co-conspirators, including two

individuals who worked at the Orange County Health Department, to help her




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obtain lists of names, dates of birth, and Social Security numbers. She then used

this stolen personal information to file the false tax returns.

      The IRS identified 3,592 false tax returns and 3,023 different victims of Ms.

Fox’s fraudulent scheme. More than 1,640 victims were 16 to 18 years old when a

fraudulent tax return was submitted using their name and Social Security number.

More than $1 million in paper refund checks were sent directly to Ms. Fox’s tax

service business, and the IRS identified 25 different bank accounts that received an

additional $3 million or more as a result of Ms. Fox’s fraudulent scheme. The

presentence investigation report stated that the IRS actually lost more than $4

million, and that Ms. Fox had intended to fraudulently obtain an additional $1.8

million, for a total tax loss of $5.8 million.

      Ms. Fox had a base offense level of seven under U.S.S.G. § 2B1.1(a)(1)(A).

She received an additional 18 levels for the loss amount under § 2B1.1(b)(1)(J),

and a four-level role enhancement under § 3B1.1(a).               She also received an

additional six levels under § 2B1.1(b)(2)(C), because the offense involved more

than 250 victims, and an additional two levels for a sophisticated means

enhancement under § 2B1.1(b)(10)(C). Her total offense level was therefore 37,

and she had a criminal history category of II, resulting in an advisory Guidelines

range of 235 to 293 months’ imprisonment.




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      Ms. Fox objected to the six-level enhancement for the number of victims,

arguing that the IRS was the sole victim in her scheme. She also objected to the

sophisticated means enhancement because her fraud scheme was “nothing more

than a garden variety . . . identity theft income tax fraud case.” The district court

overruled the objections and sentenced Ms. Fox to 240 months’ imprisonment: 120

months for the conspiracy to defraud the United States and theft of government

property counts, 216 months concurrently on the wire fraud counts, and 24 months

consecutively on the aggravated identity theft counts.      Ms. Fox did not raise

additional objections following the district court’s judgment.

      At issue in this appeal are the enhancements for the number of victims and

sophisticated means. We address each one below.

                                         II

      We review claims that the district court erroneously applied the Sentencing

Guidelines under a two-pronged approach. See United States v. Williams, 527 F.3d

1235, 1247 (11th Cir. 2008). We review factual findings for clear error. See id.

And we review the district court’s application of the facts to the Guidelines de

novo. See id. at 1247-48.

      But if claims are not preserved below, we review only for plain error. See

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “To preserve an

issue at trial for later consideration by an appellate court, one must raise an


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objection that is sufficient to apprise the trial court and the opposing party of the

particular grounds upon which appellate relief will later be sought.” United States

v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986) (“A general objection or an

objection on other grounds will not suffice.”).

                                            A

       We first review Ms. Fox’s argument regarding the district court’s six-level

enhancement for the number of victims. A district court’s factual finding on the

number of victims is reviewed for clear error. See United States v. Rodriguez, 732

F.3d 1299, 1305 (11th Cir. 2013).

       At sentencing, Ms. Fox objected that the IRS was the only victim that

suffered a pecuniary loss. Ms. Fox acknowledged that, although “there were far

more than 250 individuals who were, for lack of a better word, victims of the

aggravated identity theft,” the enhancement should not apply to her case because

the government was the sole victim. The district court told the government not to

respond because Ms. Fox’s argument was foreclosed by precedent (which the

district court did not identify).

       On appeal, Ms. Fox argues that the district court erred because it did not

require the government to present evidence supporting the enhancement prior to

ruling on her objection. She also argues that the district court made no explicit

factual findings supporting the enhancement. Ms. Fox, however, never objected on


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evidentiary grounds below.      Nor did she object to the district court’s factual

findings. See United States v. Smith, 231 F.3d 800, 820 (11th Cir. 2000) (holding

that it was “too late now to complain in this court” after the defendant had failed to

“request more specific findings of fact by the district court”).

      Even if we were to assume (without deciding) that Ms. Fox’s argument is

properly preserved, it lacks merit. Ms. Fox did not object to any of the facts in the

presentence investigation report, which stated that the IRS identified “3,203

different victims” of Ms. Fox’s tax fraud scheme, including “1,642 individual

victims” between the ages of 16 and 18. And we have held that a district court can

rely on undisputed factual statements in a presentence investigation report when it

makes findings of fact. See United States v. Wilson, 884 F.2d 1355, 1356 (11th

Cir. 1989). The Sentencing Guidelines provide for a six-level enhancement if the

crime involves more than 250 victims, and define “victim” as “any person who

sustained any part of the actual loss.” § 2B1.1 cmt. n.1. When a case involves the

theft of means of identification, a victim is also “any individual whose means of

identification was used unlawfully or without authority.” § 2B1.1 cmt. n.4(E). We

have therefore affirmed a district court’s application of the 250 or more victims

enhancement based upon an undisputed presentence investigation report that

indicated that more than 250 Social Security numbers were used to file false tax

returns and obtain fraudulent tax refunds. See United States v. Philidor, 717 F.3d


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883, 885-86 (11th Cir. 2013). Based on Philidor, we affirm the district court’s

application of the six-level enhancement for 250 or more victims.

                                          B

      Next, we review Ms. Fox’s argument that the district court erred in applying

the two-level sophisticated means enhancement because her tax fraud scheme was

a garden-variety scheme. She contends that the district court erred because it

applied the enhancement without making a specific factual finding that her tax

fraud scheme was especially sophisticated when compared to other tax fraud

schemes. The government, on appeal, argues that she failed to raise these precise

objections before the district court.

      We assume (again without deciding) that Ms. Fox’s arguments are properly

preserved. As relevant here, § 2B1.1(b)(10)(C) provides a two-level enhancement

if the offense of conviction involved sophisticated means, which is defined as

“especially complex or especially intricate offense conduct pertaining to the

execution or concealment of an offense.” § 2B1.1 cmt. n.9(B) (stating that the

enhancement includes “hiding assets or transactions, or both, through the use of

fictitious entities, corporate shells, or offshore financial accounts”).      The

enhancement is based on the totality of the scheme, and not each individual action

that a defendant takes. See United States v. Ghertler, 605 F.3d 1256, 1267 (11th

Cir. 2010). See also United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir.


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2007) (affirming the district court’s application of the enhancement where an

elected official used “campaign accounts and credit cards issued to other people to

conceal cash expenditures in a deliberate attempt to impede the discovery of both

the existence and the extent of his tax fraud”) (internal quotation marks omitted).

We review the district court’s factual finding for clear error. See United States v.

Dimitrovski, 782 F.3d 622, 629 (11th Cir. 2015).

      The district court ruled that the enhancement was warranted because Ms.

Fox recruited others to help her, used co-conspirators who worked for a

government agency, and acquired stolen identifies and completed the fraudulent

returns using a methodology designed to avoid IRS detection—something the

district court termed “the sweet spot.”      The district court agreed with the

government that it was significant that Ms. Fox had opened fictitious businesses to

funnel fraudulent tax returns into the businesses’ bank accounts, and that Ms. Fox

relied upon a number of people to help her obtain stolen identities, file false tax

returns, and cash tax return checks. Finally, the district court also found that Ms.

Fox’s scheme was not unsophisticated simply because criminals conduct similar

tax fraud schemes around the country. Although Ms. Fox argues that her scheme

was common, she does not dispute any of the underlying facts, many of which

were designed to hide her massive tax fraud scheme. On this record, the district

court did not clearly err by applying the sophisticated means enhancement.


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                                         III

      Finally, although we affirm Ms. Fox’s sentence, there is a clerical error in

the judgment. The jury convicted Ms. Fox of Count 3, which charged the crime of

wire fraud in violation of 18 U.S.C. §§ 2 and 1343. The judgment, however,

mistakenly lists 18 U.S.C. § 3 (referring to accessories after the fact), instead of 18

U.S.C. § 2 (referring to principals). “We may sua sponte raise the issue of clerical

errors in the judgment and remand with instruction that the district court correct the

errors.” United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998). On

remand, the district court shall correct the clerical error in Ms. Fox’s judgment.

      AFFIRMED AND REMANDED FOR CORRECTION OF CLERICAL

ERROR.




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