           Case: 12-14001   Date Filed: 04/11/2013   Page: 1 of 11




                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14001
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:09-cr-00038-WLS-TQL-5



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

TOWAN A. WHITE,

                                                          Defendant-Appellant.

                       ________________________

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

                            (April 11, 2013)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Towan White appeals his 64-month sentence, imposed after he pled guilty to

one count of conspiracy to defraud the United States, in violation of 18 U.S.C.

§ 286. After review, we affirm.

      This appeal involves only the calculation of the loss amount under U.S.S.G.

§ 2B1.1(b) for purposes of determining Defendant White’s offense level. We

review the superseding indictment, the presentence investigation report (“PSI”)

and testimony at the sentencing hearing and then address Defendant White’s

arguments about relevant conduct and the resulting loss calculation.

                          I. SUPERSEDING INDICTMENT

      The superseding indictment (“the indictment”) alleged that between June 1,

2004 and November 27, 2006, Defendant White and his codefendants entered into

an agreement to defraud the government “by preparing fraudulent federal tax

returns using the names and identifying information of others in order to receive

refund checks totaling approximately $392,768.00.” The indictment alleged that

two of the codefendants, Marvin K. Jones, Sr. and Russell Navarre, were

incarcerated in the Georgia Department of Corrections and that the other

codefendants lived in various cities in Georgia, including Loganville, Americus,

Albany and Plains. Defendant White was one of the defendants who lived in

Americus.




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      The indictment alleged that the object of the conspiracy was “to obtain

fraudulent federal tax refunds,” and that the “manner and means of the conspiracy”

included: (1) “[p]repar[ing] over one hundred and fifty false federal income tax

returns using the names and identifying information of prison inmates or persons

living in the community”; (2) “[f]orward[ing] employer identity information to

Jones, Sr., to be used in the preparation of false W-2 Forms”; (3) “[t]yp[ing]

fraudulent W-2 Forms from the library of the prison where Jones Sr. and Navarre

were incarcerated”; (4) “[r]eport[ing] false income and taxes withheld on federal

income tax returns to the IRS”; (5) “[c]aus[ing] the IRS refund checks to be sent

via United States Mail to the addresses of the conspirators or other persons living

in the community”; (6) “[using] the IRS automated telephone system to track the

issuance of fraudulently obtained refund checks”; (7) “[n]egotiat[ing] or caus[ing]

the negotiation of the fraudulently obtained refund checks”; and (8) “[d]ivid[ing]

the proceeds among themselves.”

      The indictment also identified a number of overt acts and listed 48

fraudulent income tax returns the conspirators prepared and filed between June

2004 and August 2006. The listed tax returns used addresses in Marietta, Albany,

Loganville, and Americus, Georgia and totaled $392,768 in refunds.

      With respect to Defendant White’s specific overt acts, the indictment alleged

that: (1) Defendant White gave an unindicted coconspirator at least one


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fraudulently obtained refund check; (2) the same unindicted coconspirator gave the

proceeds of at least 27 cashed refund checks to Defendant White or another

codefendant, James Wiley; (3) on July 3, 2006, Defendant White participated in a

three-party telephone call with Jones, Sr. and his son, codefendant Marvin Jones,

Jr., to discuss making changes to fraudulent tax forms; and (4) on July 11, 2006,

Defendant White gave Jones, Jr. a list of companies to be used in preparing false

income tax returns. Defendant White pled guilty to the conspiracy as charged.

                            II. OFFENSE CONDUCT

      Undisputed portions of the PSI and Special Agent Brian Slemmon’s

testimony at the sentencing hearing showed how the tax fraud scheme worked.

The IRS and the Georgia Department of Corrections investigated the tax fraud

scheme between 2001 and 2006 and focused on Jones, Sr., who was serving a life

sentence in a Georgia prison. While in prison, Jones Sr., oversaw a widespread tax

refund scheme in which hundreds of fraudulent returns were filed. Jones, Sr.

recruited Navarre. In turn, Jones, Sr. and Navarre recruited filers from the prison

population and prepared false tax documents in the prison library.

      To assist them in the scheme, Jones, Sr. also recruited individuals outside the

prison, including Defendant White. These outside individuals participated in the

scheme by: (1) gathering company information to use in preparing false W-2

forms; (2) preparing false tax documents; (3) arranging for the fraudulently


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obtained refund checks to be mailed to certain addresses; (4) tracking the issuance

of the refund checks through the IRS’s automated telephone system; and (5)

collecting and cashing the refund checks and dividing the proceeds. Jones, Sr.

continued to recruit prison inmates and outside individuals even as he was

transferred between numerous state prisons. Some of the fraudulent tax returns the

conspirators filed used Atlanta-area addresses and some used Americus addresses.

      Defendant White was directly involved in the submission of the Americus

tax returns and in the retrieving and negotiating of the refund checks sent to the

Americus addresses. For example, on March 8, 2005, a false tax return was filed

in Defendant White’s own name using an Americus address that was also listed on

other false returns connected to the conspiracy. There was no such direct evidence

of Defendant White’s participation in the Atlanta tax returns or refund checks.

                 III. DISTRICT COURT’S LOSS CALCULATION

      The PSI stated that Defendant White joined the conspiracy on April 15, 2002

and was responsible for 328 false tax returns claiming $2,720,605 in fraudulently

obtained refunds. Based on this loss amount, the PSI increased Defendant White’s

base offense level by 18 levels, pursuant to U.S.S.G. § 2B1.1(b)(1)(J).

      Defendant White objected to the PSI’s offense calculation, arguing that it

incorrectly assessed his relevant conduct. Defendant White admitted he had

provided addresses in Americus to Jones, Sr., removed refund checks from


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mailboxes, delivered refund checks to codefendant Wiley, arranged for Wiley to

cash refund checks, and received portions of refund check proceeds. Defendant

White also admitted that he participated in telephone conversations with Jones, Sr.

about preparing false tax returns. Defendant White maintained, however, that he

should not be held responsible for all the tax returns, but only those for which he

was directly involved in the retrieval or negotiation of the refund checks.

Defendant White offered to stipulate to 30 returns, for an intended loss amount of

not more than $400,000 and an offense level of 14 under § 2B1.1(b). Defendant

White also argued that he should not be held responsible for returns filed as early

as April 15, 2002, given that the charged conspiracy did not begin until two years

later.

         At sentencing, Defendant White reiterated his prior objections and also

argued that, for sentencing purposes, the district court should find that there were

in fact two conspiracies: one conspiracy involving refunds sent to addresses in the

Atlanta area and another conspiracy involving refunds sent to addresses in

Americus. Defendant White contended that he was unaware of the refunds sent to

Atlanta-area addresses.

         The district court found that Defendant White joined the conspiracy on

March 8, 2005, the date the false tax return bearing his name was filed, rather than

the April 15, 2002 date set out in the PSI. The district court rejected the argument


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that there were two conspiracies, explaining, “That’s simply not what the plea has

been in this case and that’s not what the evidence would indicate from what the

Court has observed” and “simply because . . . some member of the conspiracy

might carry out the conspiracy primarily in one area and others in another does not

discount the fact that there was a conspiracy.” The district court concluded that

Defendant White was accountable for all tax returns within the scope of the

conspiracy after he joined it, even if he did not personally know about each one of

them.

        Based on Defendant White’s date of entry on March 8, 2005 and the record

as to the conspiracy, the district court found that White was responsible for the 124

fraudulent tax returns filed after that date, whether the returns bore an Atlanta or

Americus address, for an intended loss amount of $1,004,084. This loss amount

resulted in a 16-level increase in Defendant White’s offense level under U.S.S.G.

§ 2B1.1(b)(1)(I).

                                 IV. DISCUSSION

        On appeal, Defendant White raises three arguments challenging the district

court’s finding that he was responsible for the 124 tax returns filed by the

conspirators after March 8, 2005, for a loss amount of $1,004,084. Specifically,

White contends that: (1) there was an Atlanta conspiracy and an Americus

conspiracy, and White was involved in only the Americus conspiracy; (2) the


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record was devoid of evidence that White joined the conspiracy before 2006, when

he conceded membership; and (3) the tax refund checks sent to Atlanta-area

addresses should not have been included in his relevant conduct. All of White’s

arguments lack merit.

      The indictment alleged a single, illegal object—to defraud the government

by obtaining federal tax refunds—and alleged that the conspirators together

assisted in achieving the object by performing a number of interdependent

functions. As alleged, the conspirators collected personal and employer

information from people in prison and in the community and forwarded it to Jones,

Sr. for use in preparing false W-2 forms and income tax returns; caused the refunds

to be sent to particular addresses, tracked the issuance of those refund checks, and

then negotiated them and divided the proceeds. See United States v. Alred, 144

F.3d 1405, 1415 (11th Cir. 1998) (“If there is one overall agreement among the

various parties to perform different functions in order to carry out the objectives of

the conspiracy, then it is one conspiracy.”). In short, the indictment charged a

single conspiracy, and Defendant White’s guilty plea constituted a binding

admission of the foregoing. See United States v. Taffe, 36 F.3d 1047, 1049 (11th

Cir. 1994) (explaining that by pleading guilty, the defendant “made a legally

binding admission” to the facts alleged in the indictment).




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      The district court also did not clearly err in finding that Defendant White

joined the conspiracy on March 8, 2005. Special Agent Slemmons testified that a

false return was submitted on March 8, 2005, in Defendant White’s name and

bearing an address that had been listed on other false returns filed by the

conspirators. This testimony supports the district court’s finding that White was

responsible for that tax return and, further, that its filing marked his entry into the

charged conspiracy.

      Defendant White also has not shown reversible error in the district court’s

determination under U.S.S.G. § 1B1.3 that his relevant conduct included all 124

tax returns filed after he joined the conspiracy, including those involving Atlanta-

area addresses. In a conspiracy case, a defendant’s relevant conduct includes not

only his own individual acts and omissions, but also all reasonably foreseeable acts

and omissions by others in furtherance of the jointly undertaken criminal activity.

U.S.S.G. § 1B1.3(a)(1)(B). Before holding a defendant responsible for the acts of

others, “the district court must first make individualized findings concerning the

scope of criminal activity undertaken by a particular defendant.” See United States

v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003) (quotation marks omitted). To

this end, the district court may consider any explicit agreement or implicit

agreement fairly inferred from the conduct of the defendant and others. Id. at

1319-20.


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      Although Defendant White complains the district court did not adequately

make the required findings as to White’s involvement in the conspiracy, such a

failure “is not grounds for vacating a sentence if the record supports the court’s

determination with respect to the offense conduct, including the imputation of

others’ unlawful acts to the defendant.” United States v. Petrie, 302 F.3d 1280,

1290 (11th Cir. 2002). The undisputed facts here demonstrate that the jointly

undertaken criminal activity was to file false tax returns using the identities of

people both inside and outside of prison. Defendant White, as someone outside the

prison, agreed to participate in the scheme: (1) by gathering information that Jones,

Sr. and Navarre, who were inside the prison, could use on false W-2 forms and tax

returns; and then (2) by collecting the fraudulently obtained refund checks sent to

Americus, negotiating them and dividing the proceeds. Because the record here

supports the district court’s relevant conduct finding, no remand is required.

      Defendant White alternatively contends that the false tax returns with

Atlanta addresses were not reasonably foreseeable to him because he did not know

about or directly participate in them. Given the scope and interdependent nature of

the conspiracy, however, White did not have to know about or participate in each

individual tax return for it to be reasonably foreseeable to him that some of the

false tax returns Jones, Sr. prepared would use addresses from places other than

Americus. See United States v. De La Cruz Suarez, 601 F.3d 1202, 1221 (11th


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Cir. 2010) (“If a defendant is aware of the scope of a conspiracy outside of his

individual actions, he may be held accountable for actions by co-conspirators even

though he was not personally involved.”).

      AFFIRMED.




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