                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                FEB 24, 2010
                               No. 08-16698                      JOHN LEY
                           Non-Argument Calendar                   CLERK
                         ________________________

                     D. C. Docket No. 08-60054-CR-WJZ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

EARL R. WOLFE,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (February 24, 2010)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

     In a seven-count indictment, Earl R. Wolfe and two others were charged, in
Count One, with conspiracy to defraud the United States by obstructing the IRS’s

collection of income tax revenues, in violation of 18 U.S.C. § 371, and Wolfe was

charged in Counts Two through Seven with filing false tax returns, in violation of

26 U.S.C. § 7206(1). At trial, a jury found him guilty on all counts. The district

court then sentenced him to concurrent prison terms of 54 months on Count One

and 36 months on Counts Two through Seven. He now appeals his sentences,

contending that the district court, in determining the appropriate sentence range

under the Sentencing Guidelines, erred in increasing the base offense level by two

levels pursuant to U.S.S.G. § 3B1.1(c) because he played an aggravating role in the

criminal activity. He also contends that the court failed to calculate correctly the

amount of his tax liability, and that his combined sentences are unreasonable. We

affirm.

      Wolfe was charged with conspiring to defraud the United States with Linda

Edell and Lawrence Legel from 1992 until the date of the indictment in 2008 “by

utilizing sham corporate entities, nominee bank accounts, and other surreptitious

means to conceal the business income and assets of defendant Wolfe from the

[IRS].” While Edell and Legel pleaded guilty, Wolfe pleaded not guilty and

proceeded to a trial at which he represented himself. At Wolfe’s jury trial,

Randolph James, Wolfe’s former CPA, testified about Wolfe’s prior problems with



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the IRS and his decision to “exit” the tax system. Other witnesses testified that

Wolfe, a provider of architectural services, created sham entities such as Penta

Trust, Sun Blest Designs, Inc., Domicile Creators Service Ministry, and

Promethian Construction, Inc., and he instructed his business clients to make

checks payable to these entities. With the help of Edell and Legel, Wolfe cashed

the checks at a check cashing store. Wolfe failed to file a tax return after 1990

despite earning significant income.

I. Aggravating Role Enhancement under U.S.S.G. § 3B1.1(c)

      On appeal, Wolfe argues that the district court erred in assessing a two-level

aggravating role enhancement. He contends that the enhancement was erroneous

because he did not recruit, supervise, lead, or manage Legel in joint criminal

activity, and Edell acted on her own accord. With respect to Edell, Wolfe

maintains that she was equally culpable because she: (1) endorsed checks made out

to corporate entities at the check cashing store; (2) owned one of Wolfe’s vehicles;

(3) owned property that she deeded to the Ministry; and (4) signed a tax return for

Penta. Similarly, Legel’s actions were commensurate with Wolfe’s involvement

because Legel: (1) was the registered agent and a director of Promethian; (2) was

the registered agent for Sun Blest; (3) wrote a letter of authorization to allow Wolfe

to negotiate checks made out to Sun Blest; and (4) filed tax returns for Sun Blest.



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Therefore, Wolfe asserts that he did not direct anyone to engage in criminal

activity, and he should not have received a leadership enhancement with respect to

Edell or Legel because there was insufficient evidence to support the conclusion

that he directed anyone. Moreover, Wolfe argues that the Government failed to

meet its burden to support the leadership enhancement because it did not produce

any direct evidence.

      “We review the district court’s determination of a convicted defendant’s role

in the offense as a question of fact subject to a clearly erroneous standard of

review.” United States v. Mesa, 247 F.3d 1165, 1168 (11th Cir. 2001). The

application of the Sentencing Guidelines is reviewed de novo. Id. The Sentencing

Guidelines provide for an enhanced offense level for a defendant who had an

aggravating role in the offense. U.S.S.G. § 3B1.1. Sections 3B1.1(a) and (b)

provide:

      Based on defendant’s role in the offense, increase the offense level as
      follows: (a) If the defendant was an organizer or leader of a criminal
      activity that involved five or more participants or was otherwise
      extensive, increase by 4 levels. (b) If the defendant was a manager or
      supervisor (but not an organizer or leader) and the criminal activity
      involved five or more participants or was otherwise extensive,
      increase by 3 levels.

U.S.S.G. § 3B1.1(a), (b). A two-level enhancement may be applied if “the

defendant was an organizer, leader, manager, or supervisor in any criminal activity



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other than described in (a) or (b).” U.S.S.G. § 3B1.1(c). The Guidelines also

provide that “[t]o qualify for an adjustment [under § 3B1.1], the defendant must

have been the organizer, leader, manager, or supervisor of one or more other

participants.” U.S.S.G. § 3B1.1, comment. (n.2). Moreover, a “participant” is

defined as “a person who is criminally responsible for the commission of the

offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment. (n.1).

“The government bears the burden of proving by a preponderance of the evidence

that the defendant had an aggravating role in the offense.” United States v. Yeager,

331 F.3d 1216, 1226 (11th Cir. 2003). “The assertion of control or influence over

only one individual is sufficient to support the role enhancement.” United States v.

Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004).

      Here, the district court did not clearly err in assessing the two-level

aggravating leadership role enhancement because Wolfe asserted control and

influence over Edell and Legel in carrying out the conspiracy to defraud the United

States.

II. Calculation of Tax Liability

      Next, Wolfe argues that he should not be responsible for the tax liability for

the year 1998 that was included in the loss calculation because it was barred by the

six-year statute of limitations under 26 U.S.C. § 6531 for tax conspiracies. Wolfe



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maintains that the 1998 tax loss was predicated on his failure to file an income tax

return for that year and was not within the ambit of the conspiracy count.

Moreover, he argues that because the 1998 tax liability was not introduced at trial,

the district court was constitutionally barred from including it in the loss

calculation at the sentencing hearing under United States v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

      A sentencing court’s interpretation and application of the Guidelines is

reviewed de novo. United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997).

We “review the district court’s loss determination for clear error.” United States v.

Renick, 273 F.3d 1009, 1025 (11th Cir. 2001). Under 26 U.S.C. § 6531, the period

of limitation on criminal prosecutions “for offenses involving the defrauding [of]

. . . the United States, whether by conspiracy or not, and in any manner” is six

years. 26 U.S.C. § 6531(1). However, the district court “may consider criminal

conduct that occurred outside of the statute of limitations period as relevant

conduct for sentencing purposes.” United States v. Behr, 93 F.3d 764, 766 (11th

Cir. 1996). Moreover, we “have concluded that a sentencing court does not err

when it enhances a sentence under an advisory guidelines scheme based on facts

found by a preponderance of the evidence.” United States v. Woodard, 459 F.3d

1078, 1088 n.9 (11th Cir. 2006) (holding that the district court did not err under



                                           6
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),

when it based the defendant’s sentence on a loss amount that was not admitted by

the defendant or determined by the jury).

      Tax loss, for purposes of § 2T1.1, is “the total amount of loss that was the

object of the offense (i.e., the loss that would have resulted had the offense been

successfully completed).” U.S.S.G. § 2T1.1(c)(1). “In determining the total tax

loss attributable to the offense (see § 1B1.3(a)(2)), all conduct violating the tax

laws should be considered as part of the same course of conduct or common

scheme or plan unless the evidence demonstrates that the conduct is clearly

unrelated.” U.S.S.G. § 2T1.1, comment. (n.2).

      In this case, the district court did not err in calculating the amount of tax

loss. The tax loss for 1998, i.e., $32,735, was properly included in the computation

because it fell within Wolfe’s conspiracy to defraud the United States from 1992 to

2008. The district court was permitted to consider this relevant conduct in

fashioning Wolfe’s sentence regardless of the statute of limitations proscription

and did not err under Booker because it considered the Guidelines advisory.

III. The reasonableness of Wolfe’s Sentence

      Wolfe also challenges the substantive reasonableness of his combined

sentences. Specifically, Wolfe argues that his imprisonment for a total of 54



                                            7
months is unreasonable when compared to the probationary sentences imposed on

his codefendants. He asserts that the sentencing factors of 18 U.S.C. § 3553(a), in

particular his lack of prior criminal history and his “otherwise exemplary life,”

counseled that he receive a lower term of imprisonment

       We normally review a final sentence for reasonableness according to the

factors under § 3553(a). United States v. Winingear, 422 F.3d 1241, 1246 (11th

Cir. 2005). Where the defendant has failed to raise the issue below, however, we

typically review only for plain error. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005). “An appellate court may not correct an error the defendant

failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3)

that affects substantial rights.” Id. (internal quotations omitted). “If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (quotations omitted).

       In considering the reasonableness of a sentence, we employ an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). Where the district court imposes a sentence within the

Guidelines, it need only “set forth enough to satisfy the appellate court that it has

considered the parties’ arguments and has a reasoned basis for exercising [its] own



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legal decision making authority.” Rita v. United States, 551 U.S. 338, 356, 127

S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). In holding a particular sentence to be

reasonable, we have noted it was appreciably below the statutory maximum.

United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006). The challenger

“bears the burden of establishing that the sentence is unreasonable in light of both

[the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). The district court need not state that it has explicitly

considered each factor and need not discuss each factor. Id. at 786. The weight

accorded to the § 3553(a) factors is left to the district court’s discretion. United

States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

      The district court did not abuse its discretion, and therefore could not have

committed plain error, in sentencing Wolfe to a total of 54 months’ imprisonment

when his codefendants received probationary sentences because they pled guilty

while he proceeded to a jury trial. His sentences are, accordingly,

             AFFIRMED.




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