           Case: 13-10111   Date Filed: 10/29/2013   Page: 1 of 23


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-10111
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:12-cr-00107-CAP-GGB-2



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus

PATRICIA DENESE ANDERSON,
STEPHEN PAUL THOMAS,

                                                        Defendants-Appellants.

                       ________________________

               Appeals from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (October 29, 2013)

Before DUBINA, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Appellants Patricia Denese Anderson and Stephen Paul Thomas, a married

couple, appeal their convictions, following a jury trial, for one count of conspiracy

to defraud the government by impeding the Internal Revenue Service (“IRS”) in its

collection of income taxes, in violation of 18 U.S.C. § 371, and one count each of

making a false claim against the government, in violation of 18 U.S.C. § 287.

Thomas also appeals his 60-month total sentence, and Anderson appeals her 51-

month total sentence and $10,000 fine. On appeal, Anderson and Thomas both

argue that the district court: (i) erroneously denied their request for a mistrial after

the court commented on the evidence; and (ii) improperly imposed two-level

sophisticated-means enhancements to their sentencing guideline calculations. In

addition, Anderson argues that: (i) the district court improperly admitted into

evidence a letter that Anderson mailed to the court; (ii) the cumulative effect of

trial errors entitles Anderson to a new trial; (iii) the district court improperly

imposed a two-level obstruction-of-justice enhancement to Anderson’s guideline

calculations; (iv) Anderson’s 51-month sentence is substantively unreasonable; and

(v) the district court erroneously imposed a $10,000 fine as part of Anderson’s

sentence. After reviewing the record and the parties’ briefs, we affirm Anderson’s

and Thomas’s convictions and sentences, but we vacate the imposition of

Anderson’s fine, and remand in part.




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                                           I.

      Anderson argues that the district court improperly admitted into evidence

under Federal Rule of Evidence 404(b) a pro se “letter” that she mailed to the

district court before trial. In this “letter,” Anderson asserted that a magistrate judge

had “convert[ed]” the magistrate judge and an Assistant U.S. Attorney “into

accommodated parties with respect to [a] debt,” which Anderson thereby purported

to “discharge.” Anderson contends that this document had no probative value and

was highly prejudicial, as it could only be perceived as bad-character evidence.

      We review a district court’s Rule 404(b) rulings for an abuse of discretion.

United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). Under this

standard, we must affirm, even if we might have decided the issue differently, so

long as the trial court’s decision was not based on a clear error of judgment or

application of the wrong legal standard. See id. at 1312. Rule 404(b) prohibits the

admission of evidence of a person’s crimes or other wrongful acts except in certain

circumstances. Fed.R.Evid. 404(b). Nevertheless, Rule 404(b) is a “rule of

inclusion,” and relevant Rule 404(b) evidence “should not lightly be excluded”

when it is central to the government’s case. United States v. Jernigan, 341 F.3d

1273, 1280 (11th Cir. 2003) (internal quotation marks omitted); see also United

States v. Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012) (explaining that Rule

404(b) allows extrinsic evidence “unless it tends to prove only criminal


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propensity” (internal quotation marks omitted)). In order to be admissible under

Rule 404(b) the evidence must be relevant to an issue other than the defendant’s

character, the government must offer sufficient proof for the jury to find by a

preponderance of evidence that the defendant committed the act, and its probative

value must not be substantially outweighed by its undue prejudice, satisfying Rule

403. Matthews, 431 F.3d at 1310-11 (quoting United States v. Delgado, 56 F.3d

1357, 1365 (11th Cir. 1995)).

      Where an extrinsic offense is offered to prove intent, its relevance is

determined by comparing the defendant’s state of mind in perpetrating both the

extrinsic and charged offenses. United States v. Zapata, 139 F.3d 1355, 1358

(11th Cir. 1998). Thus, the first prong of the Rule 404(b) test is satisfied where the

state of mind required for both offenses is the same. Id. Under the third prong of

the test, to determine whether the probative value of the evidence is substantially

outweighed by its prejudicial effect, a district court must assess all the

circumstances surrounding the extrinsic offense, including prosecutorial need,

overall similarity between the extrinsic act and the charged offense, and temporal

remoteness. See id. A district court’s limiting instruction can reduce the risk of

undue prejudice. See Zapata, 139 F.3d at 1358. When the district court gives a

curative instruction to address improper and prejudicial evidence, we will reverse

only if the evidence is “so highly prejudicial as to be incurable by the trial court’s


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admonition.” United States v. Harriston, 329 F.3d 779, 787 n.4 (11th Cir. 2003)

(internal quotation marks omitted). Finally, even if the district court abused its

discretion in admitting evidence in violation of Rule 404(b), we may still affirm if

the error was harmless. See Fed.R.Crim.P. 52(a); United States v. Hubert, 138

F.3d 912, 914 (11th Cir. 1998).

       Here, we conclude that the document at issue had minimal probative value

because it shed no light on whether Anderson possessed the intent to defraud the

government, as it was patently frivolous on its face and did not seek to defraud the

government out of anything. Nevertheless, any error in its admission was

harmless, as the jury was presented with substantial additional evidence similar to

the unorthodox views set forth in the document as well as substantial evidence of

Anderson’s guilt. It is highly unlikely that this single document—out of hundreds

of documents introduced over the course of a 6-day trial in which 24 witnesses

testified—had any appreciable effect on the outcome. See Fed.R.Crim.P. 52(a);

Hubert, 138 F.3d at 914. Moreover, the court instructed the jury to consider the

document only to the extent that it shed light on Anderson’s state of mind, which

also served to mitigate any possible prejudice resulting from its admission. See

Zapata, 139 F.3d at 1358; Harriston, 329 F.3d at 787 n.4. Thus, we affirm as to

this issue.




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                                           II.

      Anderson and Thomas argue that the district court erroneously denied their

request for a mistrial after the court improperly injected itself into the proceedings

by asking a series of leading questions—“each loaded with highly derogatory

commentary”—that “poison[ed]” the jury against their good-faith defense, which

was the only contested issue at trial. According to Anderson and Thomas, the

court’s questions “effectively conveyed the trial judge’s negative and derogatory

personal opinion” regarding the sincerity of their beliefs and thereby effectively

directed a guilty verdict. The court also improperly took judicial notice that a

secret U.S. Treasury account does not exist. The court’s instruction to the jury not

to give more weight to questions asked by the court and disregard its comments on

the evidence was inapplicable and did not cure the error.

      We review the denial of a motion for a mistrial for an abuse of discretion.

United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004). We similarly

review a district judge’s conduct during trial for an abuse of discretion. United

States v. Palma, 511 F.3d 1311, 1317 (11th Cir. 2008). A defendant is entitled to a

grant of a mistrial only upon a showing of substantial prejudice. Wright, 392 F.3d

at 1274.

      Although a defendant is entitled to an impartial judge, because of the weight

juries are likely to place with the court’s opinion, a district judge “is not relegated


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to complete silence and inaction during the course of a criminal jury trial.” Id.

(internal quotation marks omitted). The district court may comment on the

evidence, question witnesses and elicit facts not yet adduced or clarify those

previously presented, and “maintain the pace of the trial by interrupting or cutting

off counsel as a matter of discretion.” United States v. Hill, 643 F.3d 807, 845

(11th Cir. 2011), cert. denied, 132 S.Ct. 1988 (2012) (internal quotation marks

omitted); see also Fed.R.Evid. 614(b) (“The court may examine a witness

regardless of who calls the witness.”); Wright, 392 F.3d at 1275 (holding that it

was “entirely proper for the court to make inquiries of a witness in order to clarify

the evidence presented” (internal quotation marks omitted)).

       However, a district court abuses its authority when it abandons its proper

role and assumes the role of an advocate. Fed.R.Evid. 614, Advisory Committee

Note; Wright, 392 F.3d at 1274. The trial judge “must be above even the

appearance of being partial to the prosecution.” Moore v. United States, 598 F.2d

439, 442 (5th Cir. 1979) (internal quotation marks omitted) 1.

      There must be a “clear effect on the jury” for us to reverse based on

improper comments by the trial judge. Hill, 643 F.3d at 845 (internal quotation

marks omitted). Thus, the district court abuses its discretion only when the judge’s

conduct “strays from neutrality,” and its remarks demonstrate “pervasive bias and
      1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit).

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unfairness that actually prejudice a party.” Id. at 845-46 (internal quotation marks

omitted); see also id. at 846 (“[A]n occasional lapse of patience from the bench

will not suffice to overturn a conviction returned after a full and fair presentation

of the evidence.” (quotation omitted)); United States v. Ramirez-Chilel, 289 F.3d

744, 750 n.6 (11th Cir. 2002) (“[I]n order to amount to reversible error, a judge’s

remarks must demonstrate such pervasive bias and unfairness that they prejudice

one of the parties in the case.”).

      An instruction to the jury that jurors are the sole fact-finders may cure a

deficiency in the district court’s conduct. See Moore, 598 F.2d at 443; United

States v. Block, 755 F.2d 770, 776 (11th Cir. 1985) (concluding that the district

court adequately informed the jury of the purpose and function of the court’s

questions by instructing the jury that the court’s questions were “solely for the

purpose of eliciting information and not to express . . . [an] opinion or state any

facts”); Kyle v. United States, 402 F.2d 443, 445 (5th Cir. 1968) (explaining that it

is within the trial judge’s province to summarize and comment upon the evidence

and express his opinion on the facts, provided it is made clear to the jury that the

comments are not binding on the jury and that jurors are free to determine facts

according to their own judgment). We presume that the jury follows a district

court’s instructions to disregard comments the court made during trial. See Hill,

643 F.3d at 846, 849.


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      Here, the district court asked an IRS agent to confirm that

“Redemptionism”—which refers to a theory that every taxpayer has a secret bank

account with the U.S. Treasury—is a “fictitious theory” “made up by tax protestors

to try to avoid paying taxes.” The inquiry effectively conveyed to the jury the

court’s belief that the defendants’ sole defense—good-faith belief—was “made up”

in order to avoid paying taxes and, accordingly, was meritless. The court therefore

strayed from neutrality and assumed the role of an advocate. See Hill, 643 F.3d at

845-46; Wright, 392 F.3d at 1274.

      However, Anderson and Thomas have not shown that the court’s inquiry,

which occurred on the second day of a six-day trial, had a “clear effect on the

jury.” See Hill, 643 F.3d at 845. Before the court’s questioning, the IRS agent

testified that “there is no bank account at the United States Treasury for any of us

other than your Social Security account.” Moreover, the jury heard substantial

other evidence of the defendants’ intent to defraud, including testimony and

documents establishing their obstructionist interactions with the IRS over the

course of several years in the face of repeated correspondence from the IRS

detailing their obligation to pay taxes and the consequences for failing to do so,

and their attempts to shield income from taxation in the United States by way of

documents intended to characterize their domestic businesses as overseas entities.

The jury also heard testimony from a second witness that there are no secret U.S.


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Treasury accounts. Moreover, the jury heard lengthy testimony from Thomas and

his father in support of the defendants’ good-faith defense. Finally, the district

court properly instructed the jury that: (i) the court’s questions should be given no

more significance or importance than attorneys’ questions; (ii) the jury should

disregard any comments made by the court on the evidence; and (iii) the jurors are

the sole and the exclusive finders of fact in the case. See Block, 755 F.2d at 776;

Moore, 598 F.2d at 443; Kyle, 402 F.2d at 445. Accordingly, we affirm as to this

issue.

                                          III.

         Anderson argues that, even if the above errors individually do not mandate

reversal, their cumulative effect prejudiced her right to a fair trial. She asserts that

the government’s proof of intent largely depended on inferences drawn from the

defendants’ correspondence over several years. Thus, because intent was the only

element at issue, Anderson’s right to a fair trial was prejudiced by the improper

Rule 404(b) evidence and the trial judge’s “virtual pronouncement” that he did not

believe the defendants.

         Under the cumulative-error doctrine, an aggregation of non-reversible errors

(i.e., plain errors that do not require reversal and harmless errors) can mandate

reversal. United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). In

addressing a cumulative-error claim, we examine the trial record as a whole to


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determine whether the appellant was afforded a fundamentally fair trial. United

States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997). Whether cumulative

error is harmless depends on whether the defendant’s substantial rights were

affected—the same inquiry that applies to individual errors. Baker, 432 F.3d at

1223. “[T]he cumulative prejudicial effect of many errors may be greater than the

sum of prejudice caused by each individual error.” Id. The total effect of the

errors will depend on several factors, including: (i) the nature and number of

errors, and their interrelationship, if any, and combined effect; (ii) how the district

court dealt with the errors as they arose (including the efficacy, if any, of remedial

efforts); (iii) the strength of the government’s case; and (iv) the length of the trial.

Id.

      We allot substantial deference to the fact-finder in reaching credibility

determinations. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).

The fact-finder, who personally observes witnesses’ testimony, is in a better

position than a reviewing court to assess their credibility. See Ramirez-Chilel, 289

F.3d at 749. When a defendant testifies in his own defense, the fact-finder may

disbelieve his testimony, and consider the defendant’s testimony as substantive

evidence of his guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir.

1995).




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      We conclude from the record that Anderson has not shown that she was

deprived of a fundamentally fair trial, as the errors she identifies were harmless

both individually and cumulatively. See Baker, 432 F.3d at 1223; Calderon, 127

F.3d at 1333. As discussed above, her pretrial pro se submission was simply one

of numerous frivolous filings made by the defendants over the course of several

years, and the district court’s improper questioning similarly was both brief and

isolated. Even when considered cumulatively, these were relatively small events

over the course of the entire trial, during which substantial evidence was

presented—including the testimony of Thomas and his father, who explained the

defense theory of good-faith belief in great detail, and who the jury was entitled to

disbelieve—from which the jury could have determined that Anderson acted with

the intent to defraud the government. See Calderon, 127 F.3d at 1333; Brown, 53

F.3d at 314. Accordingly, we affirm this issue.

                                          IV.

      Anderson and Thomas argue that the district court erred when it imposed

two-level sophisticated-means enhancements to their sentencing guideline

calculations based on its findings that: (i) fictitious Employer Identification

Numbers were used; (ii) “somehow in the scheme they use[d their] foreign trust in

Belize”; and (iii) the defendants “used assets or used bank accounts to conceal

assets by making payments to family members and concealing the transactions.”


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They further argue that they submitted evidence that the identification numbers

that Thomas gave his banks all belonged to their trust agreement, which was the

only account kept in Belize. Additionally, they claim that they did not conceal

Thomas’s loan repayments to his father, and their conduct was neither complex nor

intricate. For example, the pair of Forms 1040 and the 1099-OIDs that they sent to

the IRS were incomplete, simple, and unsophisticated.

      We review for clear error a district court’s finding that sophisticated means

were used. United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011),

cert. denied, 132 S.Ct. 1066 (2012). The sophisticated-means enhancement is

appropriate for especially complex or intricate conduct during the execution or

concealment of the offense. U.S.S.G. § 2B1.1, comment. (n.8(B)); Barrington,

648 F.3d at 1199. Conduct such as hiding assets or transactions through the use of

fictitious or shell entities or offshore accounts ordinarily indicates sophisticated

means. U.S.S.G. § 2B1.1, comment. (n.8(B)). Each action by a defendant need

not be sophisticated in order to support this enhancement; it is sufficient if the

totality of the scheme was sophisticated. Barrington, 648 F.3d at 1199.

      In United States v. Ghertler, 605 F.3d 1256, 1267-68 (11th Cir. 2010), we

affirmed the application of a sophisticated-means enhancement where the

defendant conducted extensive research to develop inside information to facilitate

a scheme to defraud; forged false company documents; and used unwitting third


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parties to conceal the fraud. Similarly, in United States v. Campbell, 491 F.3d

1306 (11th Cir. 2007), we held that a sophisticated-means enhancement was

appropriate where the defendant used campaign accounts and credit cards issued to

others to conceal cash expenditures and tax fraud. Id at 1315. We noted in

Campbell that there was no difference between hiding assets or transactions by use

of fictitious entities, corporate shells, or offshore accounts, and hiding assets or

transactions by use of a “straw man” or campaign fund. Id. at 1316.

      Anderson and Thomas have not shown that the district court erred when it

imposed the sophisticated-means enhancements. The district court was entitled to

determine that the purpose of their foreign trust was to hide assets from the

government, particularly in light of the defendants’ continued efforts to avoid

paying taxes over several years, which included multiple filings asserting that

income from various domestic sources was non-domestic, as a result of which at

least one of their sources of income stopped reporting earnings to the IRS. See

U.S.S.G. § 2B1.1, comment. (n.8(B)); Ghertler, 605 F.3d at 1267-68; Campbell,

491 F.3d at 1315-16. Thus, we affirm the sophisticated-means enhancements.

                                           V.

      Anderson argues that the district court also erred when it imposed a two-

level obstruction-of-justice enhancement based on its determination that her prior

correspondence with the district court and the government was “obstructing and


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harassing” and because of “what happened in [the district] court” at a June 14,

2012, status conference (the “June 14 Conference”). According to Anderson, no

evidence indicated who the correspondence obstructed or harassed or how it did so,

and Anderson stopped when ordered to do so. The district court also made no

findings regarding “what happened in [the district] court on June the 14th.”

Anderson’s colloquy with the court at the June 14 Conference did not show an

intent to obstruct, but rather indicated that Anderson was scared, confused, and

acting as she had been coached by her husband’s family.

      We review a district court’s factual findings underlying an obstruction-of-

justice sentencing enhancement for clear error, and the district court’s application

of the factual findings to the Sentencing Guidelines de novo. United States v. Doe,

661 F.3d 550, 565 (11th Cir. 2011), cert. denied, 132 S.Ct. 1648 (2012). The

enhancement applies where the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice during the course of

the investigation, prosecution, or sentencing of the instant offense of conviction,

related conduct, or a closely related offense. U.S.S.G. § 3C1.1; Doe, 661 F.3d at

565-66. Examples of obstructive conduct include unlawfully influencing witnesses

or jurors; committing perjury or providing materially false information to a judge,

law enforcement officer, or probation officer; and destroying or concealing

material evidence. U.S.S.G. § 3C1.1, comment. (n.4). Examples of conduct that


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ordinarily do not warrant an enhancement include giving false identifying

information at arrest (except where doing so significantly hinders the

investigation), making false statements not under oath to law enforcement officers,

providing immaterially incomplete or misleading information to a probation

officer, and lying to a probation officer about drug use. See id., comment. (n.5).

“Obstructive conduct can vary widely in nature, degree of planning, and

seriousness.” Id., comment. (n.3). The defendant need not be successful in her

attempt to impede or obstruct the administration of justice in order for the

enhancement to apply. See United States v. Taylor, 88 F.3d 938, 943-44 (11th Cir.

1996).

      To permit meaningful appellate review, a district court applying the

obstruction-of-justice enhancement must identify what the defendant did, why that

conduct warranted the enhancement, and how that conduct hindered the

investigation or prosecution of the offense. Id. at 944. However, even where a

district court fails to make individualized findings, if the record clearly reflects the

basis for the enhancement and supports it, a remand is unnecessary. Id.; see also

United States v. Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004); Hubert, 138 F.3d

at 915.

      The record demonstrates that the district court failed to make specific

findings regarding what Anderson did, why that conduct warranted the


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enhancement, and how that conduct hindered the investigation or prosecution of

Anderson’s offenses. See Taylor, 88 F.3d at 944. Nevertheless, we conclude that a

remand here is unnecessary because, as discussed below, the record sufficiently

reflects the basis for the enhancement and supports it. See Uscinski, 369 F.3d at

1246; Taylor, 88 F.3d at 944.

      The only relevant disputed factual issue here is whether, when she engaged

in the conduct upon which the court imposed the § 3C1.1 enhancement, Anderson

intended to obstruct her prosecution. Although the district court’s explanation for

its implicit finding at sentencing that Anderson possessed the requisite intent is not

the model of clarity, Anderson has not shown that the district court clearly erred in

making this finding. See Doe, 661 F.3d at 565. The district court was in the best

position to observe Anderson’s demeanor during the June 14 Conference—when it

explicitly found that Anderson was “trying to disrupt the Court”—and, therefore,

was uniquely situated to make findings regarding Anderson’s intent. See Ramirez-

Chilel, 289 F.3d at 749. The court also determined during trial that Anderson was

“clearly trying to obstruct and confuse and delay the government . . . as well as the

court” when she submitted two dozen pro se pretrial filings. The combined effect

of Anderson’s conduct during the June 14 Conference and her pro se pretrial

filings resulted in an unnecessary drain on the district court’s resources, and the

court’s implicit finding that Anderson engaged in those acts with the intent to


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obstruct her court proceedings are sufficient to support the § 3C1.1 enhancement.

See U.S.S.G. § 3C1.1; Uscinski, 369 F.3d at 1246; Doe, 661 F.3d at 565.

                                         VI.

      Anderson argues that her 51-month sentence is substantively unreasonable

because, at most, she labored under an unreasonable understanding of the law.

Anderson further asserts that she was significantly less culpable than Thomas, and

she was heavily influenced by, and acted out of subservience to, Thomas’s family.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591

(2007). The district court is required to impose a sentence sufficient, but not

greater than necessary, to comply with the purposes listed in 18 U.S.C. §

3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal conduct,

and protect the public from the defendant’s future criminal conduct. 18 U.S.C. §

3553(a)(2). The party challenging the sentence has the burden of showing that it

was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      In reviewing the reasonableness of a sentence, we first consider whether the

district court committed a procedural error, such as failing to calculate or

improperly calculating the guideline range. Gall, 552 U.S. at 51, 128 S.Ct. at 597.

If we determine that a sentence is procedurally sound, we examine whether the


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sentence was substantively reasonable in light of the totality of the circumstances

and the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.

2008). Thus, we will reverse only if “left with the definite and firm conviction that

the district court committed a clear error of judgment in weighing the § 3553(a)

factors by arriving at a sentence that lies outside the range of reasonable sentences

dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th

Cir. 2010) (en banc) (internal quotation marks omitted). A sentence imposed well

below the statutory maximum is one indicator of a reasonable sentence. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Although we do

not automatically presume that a within-guideline sentence is reasonable, we

ordinarily expect such a sentence to be reasonable. United States v. Tobin, 676

F.3d 1264, 1310 (11th Cir.), cert. denied, 133 S.Ct. 658 (2012).

      Anderson’s sentence is reasonable. Anderson’s 51-month sentence is within

her 51-63-month guideline range, and we ordinarily expect a within guideline

sentence to be reasonable. See Tobin, 676 F.3d at 1310. The sentence is

significantly below the statutory maximum of 10 years’ imprisonment, which is

another indicator of its reasonableness. See 18 U.S.C. §§ 287, 371; Gonzalez, 550

F.3d at 1324. The district court explained that, although there was a difference


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between Anderson and Thomas, Anderson was a full participant in the charged

conduct, and a shorter sentence was unlikely to deter Anderson, who did not

believe that she committed fraud. Extensive additional explanation is not required

here, where the context and the record make clear that the court listened to each

argument and found the circumstances insufficient to warrant a sentence lower

than the guideline range, and nothing in the record suggests that Anderson’s

sentence is outside the range of reasonable sentences in this type of case. See Irey,

612 F.3d at 1190. Thus, we affirm her sentence.

                                         VII.

      Finally, Anderson argues that her $10,000 fine is unreasonable because the

district court found that she was indigent and did not consider or discuss the

relevant guideline factors, including her ability to pay.

      We review the district court’s imposition of a fine for clear error. United

States v. Long, 122 F.3d 1360, 1366 (11th Cir. 1997). The Sentencing Guidelines

require district courts to impose a fine in all cases, except where the defendant

establishes that she is unable to pay and is not likely to be able to pay any fine.

U.S.S.G. § 5E1.2(a). Thus, the burden is on the defendant to prove her inability to

pay a fine. United States v. Gonzalez, 541 F.3d 1250, 1255 (11th Cir. 2008). If a

defendant establishes that she is unable to pay a fine, the court may waive the fine

or impose a lesser fine. U.S.S.G. § 5E1.2(e).


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        Once a district court decides that a fine is appropriate, it must consider the

factors in § 5E1.2(d) to determine the amount of the fine. Gonzalez, 541 F.3d at

1255. A district court is not required to make specific findings for each factor. Id.

at 1256. However, the record must contain sufficient information with respect to

the factors to permit a reviewing court to conclude that the district court did not

clearly err in imposing or setting the amount of the fine. United States v. Khawaja,

118 F.3d 1454, 1459 (11th Cir. 1997). If the presentence investigation report

(“PSI”) presented information with respect to the factors, and the district court

reviewed the PSI before imposing the fine, we “infer without hesitation” that the

district court considered the pertinent factors before imposing the fine. Id.

However, the mere adoption of the PSI will not satisfy a district court’s obligation

to rule on unresolved objections at sentencing. Id. at 1460. A defendant’s

objection to the imposition of a fine gives the district court an opportunity to

correct any error it might have made and guide appellate review. United States v.

Hernandez, 160 F.3d 661, 666 (11th Cir. 1998). If the record does not reflect the

district court’s reasoned basis for imposing a fine, we must remand the case to the

district court so it can make the necessary factual findings. Gonzalez, 541 F.3d at

1256.

        We need not remand for resentencing where a sentencing error was

harmless. See United States v. Dulcio, 441 F.3d 1269, 1277 (11th Cir. 2006). A


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non-constitutional sentencing error is harmless where the error did not contribute

to the sentence. Id.

      Here, the record is insufficient to permit us to conclude that the district court

had a reasoned basis for imposing the $10,000 fine. According to the undisputed,

court-adopted PSI facts, Anderson has not worked outside the home since 2001,

has no assets, and has liabilities of at least $49,000. The probation officer

concluded that it was unlikely that she would be able to pay a fine, and the PSI

presented no information concerning how much of a fine she might be able to pay.

Although Anderson presented no additional evidence of her ability to pay, she

relied on the district court’s prior finding that she could not afford counsel as the

basis for her objection to the imposition of a fine, and the court did not address this

objection or offer any reasons for the fine imposed. See Khawaja, 118 F.3d at

1460 (concluding that the record was insufficient for this court to review the

decision to impose a fine where the district court failed to address the defendant’s

objections thereto).

      The error here is not harmless because we cannot determine from the record

whether the court’s failure to make factual findings contributed to the imposition

of a fine. See Dulcio, 441 F.3d at 1277. The indication in the PSI that Anderson is

“able-bodied” and can “earn income through work in prison industries” provides

no indication of the amount of income that she may be able to earn. Accordingly,


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we vacate Anderson’s sentence as to the imposition of a fine and remand her case

for resentencing consistent with this opinion

                                       VIII.

      For the foregoing reasons, we affirm Anderson’s and Thomas’s convictions

and prison sentences, vacate the district court’s imposition of Anderson’s $10,000

fine, and remand the case for the limited purpose of determining whether there is a

reasoned basis for imposing a fine on Anderson.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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