          Case: 14-11038   Date Filed: 10/07/2014   Page: 1 of 6


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-11038
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:12-cr-00228-WKW-CSC-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                   versus

MARY YOUNG,

                                                        Defendant-Appellant.


                     ________________________

                           No. 14-11039
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:12-cr-00228-WKW-CSC-2



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus
                Case: 14-11038       Date Filed: 10/07/2014      Page: 2 of 6




CHRISTIAN YOUNG,

                                                                      Defendant-Appellant.

                              ________________________

                     Appeals from the United States District Court
                         for the Middle District of Alabama
                            ________________________

                                     (October 7, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

       In these consolidated appeals, Mary Young (“Mary”) and Christian Young

(“Christian”) challenge their total sentences, 87-months’ imprisonment and 70

months’ imprisonment, respectively. Each pleaded guilty to one count of

conspiracy to defraud the United States by filing electronically a multitude of

fraudulent tax returns over a period of three years, in violation of 18 U.S.C. § 286,

and one count of aggravated identity theft, in violation of 18 U.S.C. § 1029(a).1

The Youngs argue that the district court erred in increasing their base offense level

by two levels for the use of sophisticated means because the tax fraud conspiracy

was not sufficiently complex to warrant the enhancement. Christian argues in


       1
          Mary was sentenced to consecutive prison terms of 63 months for the § 286 offense
and 24 months for the § 1029(a) offense. Her combined sentences were at the bottom of the
Guidelines sentence range. Christian was sentenced to consecutive prison terms of 46 months
for the § 286 offense and 24 months for the § 1029(a) offense. His combined sentences reflect a
downward variance of 70 months.
                                               2
              Case: 14-11038      Date Filed: 10/07/2014   Page: 3 of 6


addition that the court erred by failing to reduce his base level offense by two to

four levels to reflect his role as a minor or minimal participant in the conspiracy

offense.

                             1.     Sophisticated Means

      We review the district court’s determination that a defendant used

sophisticated means for clear error. United States v. Ghertler, 605 F.3d 1256, 1267

(11th Cir. 2010).

      The Sentencing Guidelines allow the district court to enhance a defendant’s

base level offense by two levels if the offense involved “sophisticated means.”

U.S.S.G § 2B1.1(b)(10)(C). The commentary describes “sophisticated means” as

“especially complex or especially intricate offense conduct pertaining to the

execution or concealment of an offense.” Id. § 2B1.1, comment. (n.9). Using

accounts and credit cards created and issued in the name of other individuals to

perpetrate tax fraud can serve as the basis for a sophisticated means enhancement.

See United States v. Campbell, 491 F.3d 1306, 1315-16 (11th Cir. 2007) (affirming

a sentence enhancement where a tax evader utilized campaign accounts and credit

cards issued to other people to conceal cash expenditures and deliberately impede

the discovery of his tax fraud); United States v. Barakat, 130 F.3d 1448, 1457

(11th Cir. 1997) (agreeing with the district court’s determination that the

defendant’s practice of filtering funds through his attorney’s trust account


                                          3
              Case: 14-11038     Date Filed: 10/07/2014    Page: 4 of 6


constituted a sophisticated means of concealing tax evasion). There is no

requirement that each of the defendant’s individual actions be sophisticated to

impose the enhancement, so long as the totality of the scheme was sophisticated.

Ghertler, 605 F.3d at 1267.

      The district court did not clearly err by applying a two-level increase for the

use of sophisticated means. The conspiracy spanned three years and involved over

250 stolen identities and 380 fraudulent tax returns. First, the Youngs used stolen

identities from multiple sources which were difficult to trace. Second, they

obtained prepaid debit cards to use for the fraudulent refund money, and, at times,

received loans in anticipation of the refunds, making it more difficult to trace the

proceeds. Third, they assigned different names to the tax returns and the related

debit cards, making the fraud more difficult to investigate. Fourth, they used

multiple addresses to receive the prepaid debit cards by mail, which required

tracking the refund delivery status to ensure timely collection of the debit cards

from the mail. Because the totality of the tax fraud conspiracy demonstrated the

use of sophisticated means, the district court did not clearly err by applying a two-

level increase to the Youngs’ base level offenses. See Ghertler, 605 F.3d at 1267.

                        2.     Minimal or Minor Participant

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

offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 937


                                          4
               Case: 14-11038     Date Filed: 10/07/2014    Page: 5 of 6


(11th Cir. 1999) (en banc). Under the Guidelines, a defendant may receive a

reduction in his base offense level where his role in the offense can be described as

minimal, minor, or somewhere in between. U.S.S.G. § 3B1.2. Minimal

participants may receive a four-level reduction, minor participants may receive a

two-level reduction, and those whose participation falls in between may receive a

three-level reduction. U.S.S.G. § 3B1.2(a), (b). The commentary to the Guidelines

instructs that a four-level reduction “is intended to cover defendants who are

plainly among the least culpable of those involved in the conduct of a group ….

[and their] lack of knowledge or understanding of the scope and structure of the

enterprise and of the activities of others is indicative of a role as minimal

participant.” U.S.S.G. § 3B1.1, comment. (n.4). In contrast, a minor role in the

offense applies to a participant “who is less culpable than most other participants,

but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, comment.

(n.5). The defendant has the burden of establishing by a preponderance of the

evidence that he was a minimal or minor participant. Rodriguez De Varon, 175

F.3d at 938.

      To determine if a defendant is entitled to a minimal or minor role

adjustment, the district court first must evaluate the defendant’s role in the offense

on the basis of all relevant conduct within the scope of U.S.S.G. § 1B1.3 Id. at

940. After evaluating the defendant’s role in the offense, the district court may


                                           5
               Case: 14-11038     Date Filed: 10/07/2014    Page: 6 of 6


measure the defendant’s culpability in comparison to that of other participants.

Rodriguez De Varon, 175 F.3d at 944. The fact that a defendant’s role may be less

than that of other participants engaged in the relevant conduct may not be

dispositive of his role in the offense, since it is possible that none are minor or

minimal participants. Id.

      It was not clear error for the district court to deny Christian’s request for the

reduction. Christian registered the computers used in the fraud in his name, and he

had access to them. He stole identities that were used to file fraudulent tax

returns. He also utilized the fraudulent tax refunds. While Christian may have had

a lesser role in the offense than Mary, he took active steps in furtherance of the

conspiracy. Accordingly, the district court did not commit clear error in

concluding that he did not have a minimal or minor role in the offense.

      AFFIRMED.




                                           6
