                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16282         ELEVENTH CIRCUIT
                                                      OCTOBER 8, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                     D. C. Docket No. 08-60232-CR-WJZ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

AUDIE WATSON,

                                                           Defendant-Appellant.


                         ________________________

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

                               (October 8, 2010)

Before EDMONDSON, CARNES and MARTIN, Circuit Judges.

PER CURIAM:

     Audie Watson appeals his convictions and sentences for: conspiracy to
commit mail fraud and to encourage foreign nationals to remain in the United

States unlawfully, in violation of 18 U.S.C. § 371; three counts of mail fraud, in

violation of 18 U.S.C. §§ 1341 and 2; five counts of engaging in financial

transactions using criminally derived property, in violation of 18 U.S.C. §§ 1957

and 2; and one count of encouraging foreign nationals to unlawfully remain in the

United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i).

                                          I.

       First, Watson argues that the district court erred by denying his motion to

dismiss the superseding indictment based upon prosecutorial vindictiveness. We

review a district court’s denial of a motion to dismiss an indictment based upon

prosecutorial misconduct only for an abuse of discretion. United States v. Jones,

601 F.3d 1247, 1260 (11th Cir. 2010) (citing United States v. Barner, 441 F.3d

1310, 1315 (11th Cir. 2006)). We review de novo “the legal question of whether a

presumption of vindictiveness arises from the facts of the case.” Id.

      “As a general rule, as long as the prosecutor has probable cause to believe

the accused has committed a crime, the courts have no authority to interfere with a

prosecutor’s decision to prosecute.” Barner, 441 F.3d at 1315. Where a

presumption of vindictiveness does not apply, the defendant has the burden of

demonstrating actual vindictiveness. Id. at 1317, 1322. Furthermore, this Court



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recognizes a distinction between “instances in which the prosecutor substitutes a

more serious charge for the original charge and those in which new charges are

based on independent acts.” United States v. Jones, 601 F.3d 1247, 1261 n.5 (11th

Cir. 2010). When a prosecutor brings additional charges for independent acts, even

if they are part of “the same spree of activity,” a defendant must show proof of

actual vindictiveness. United States v. Taylor, 749 F.2d 1511, 1513 (11th Cir.1985)

(citation and internal quotation marks omitted).

      In this case, the government obtained a superseding indictment against

Watson before trial and after Watson declined a plea offer. These facts, without

more, do not give rise to a presumption of vindictiveness. As the Supreme Court

explained in Bordenkircher v. Hayes, 434 U.S. 357, 363–65, 98 S.Ct. 663 (1978), a

prosecutor does not violate a defendant’s constitutional rights merely by obtaining

a superseding indictment after the defendant has rejected a plea offer. Moreover,

the additional charges contained in the superseding indictment were for

independent acts within the same spree of activity, and Watson has not presented

any evidence of actual vindictiveness. Because Watson failed to establish that the

prosecutor had a vindictive motive, the district court did not abuse its discretion by

denying Watson’s motion to dismiss the superseding indictment.




                                           3
                                          II.

       Second, Watson contends that the district court should have suppressed

evidence seized during a search of his residence because the warrant authorizing

the search was not supported by probable cause. “In reviewing a district court’s

denial of a motion to suppress, this court examines the district court’s findings of

fact for clear error and its application of the law to those facts de novo.” United

States v. Tate, 586 F.3d 936, 942 (11th Cir. 2009). “[P]robable cause to search a

residence exists when ‘there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’” Id. at 942–43 (internal citations

omitted). An affidavit in support of a search warrant for a suspect’s residence

“should establish a connection between the defendant and the residence to be

searched and a link between the residence and any criminal activity.” United

States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002).

      The search warrant for Watson’s residence was supported by probable cause.

The warrant affidavit explained that Watson sold memberships in the Pembina

Nation Little Shell Band (“Pembina Nation”) to unlawful aliens after falsely

representing that tribal membership would allow the aliens to reside and work in

the United States. Therefore, there was probable cause to believe that Watson had

committed criminal acts. The affadavit also established a connection between the



                                           4
defendant, his residence, and the suspected criminal activity. Watson and one of

his employees told undercover agents that all of the files related to his business,

Universal Service Dedicated to God, Inc., were located in Watson’s residence, and

Florida records listed Watson’s residence as the corporate address for Universal

Service. Because the search warrant for Watson’s residence was supported by

probable cause, the district court properly denied Watson’s motion to suppress.

                                          III.

       Next, Watson argues that the evidence introduced at trial was insufficient to

support his convictions, or, more specifically, that the government failed to prove

that he acted with criminal intent. “We review de novo whether sufficient evidence

supports a conviction, resolving all reasonable inferences in favor of the verdict.”

United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). “We will not

reverse unless no reasonable trier of fact could find guilt beyond a reasonable

doubt.” Id.

      When a criminal defendant testifies in his own defense, the jury is entitled to

reject the defendant’s testimony and to consider it as substantive evidence of his

guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). “Where some

corroborative evidence of guilt exists for the charged offense (as is true in this

case) and the defendant takes the stand in [his] own defense, the Defendant’s



                                           5
testimony, denying guilt, may establish, by itself, elements of the offense. This rule

applies with special force where the elements to be proved for a conviction include

highly subjective elements: for example, the defendant’s intent or knowledge.”

United States v. Williams, 390 F.3d 1319, 1326 (11th Cir. 2004) (citation and

quotation marks omitted).

      The evidence was sufficient for the jury to conclude beyond a reasonable

doubt that Watson acted with criminal intent, that he encouraged unlawful aliens to

remain in the United States, that he knew the money received by Universal Service

from its clients constituted criminally derived proceeds, and that he knowingly

engaged in a scheme to defraud using the United States mail system. Watson knew

that the Pembina Nation documents were routinely not accepted, which was

evidenced both by his letters to Immigration and Customs Enforcement

acknowledging that an 1863 treaty only applied to those who were then members

of the tribe and their lineal descendants, as well as the testimony of two of his

clients, illegal aliens named Lauriston and Demelus, who complained to Watson

that their documents were not accepted. Federal agents also testified that Watson

assisted an undercover agent in procuring Pembina Nation documents for workers

lacking “papers,” and that Watson admitted in an interview that the people he

sponsored for tribal membership were in the United States illegally. Watson told



                                           6
the illegal aliens who sought out his services that they would be able to live and

work lawfully in the United States if they joined the Pembina Nation, even though

he knew that the Pembina Nation documents were not recognized by the federal

government or many employers. Thus, a reasonable jury could have concluded that

Watson intentionally misled the clients of Universal Service when he told them

that adoption by the Pembina Nation would allow them to live and work in the

United States. Finally, the prosecution submitted evidence that Watson used the

mail system in furtherance of his scheme to defraud by mailing Universal Service

materials to clients and letters to ICE on behalf of clients. Accordingly, the

evidence introduced at trial was sufficient to support all of Watson’s convictions.

                                           IV.

       Watson also contends that the district court erred by declining to give his

requested jury instructions. We review a district court’s refusal to give a requested

jury instruction only for an abuse of discretion. United States v. Culver, 598 F.3d

740, 751 (11th Cir. 2010). A court abuses its discretion only if “(1) the requested

instruction was substantively correct, (2) the court’s charge to the jury did not

cover the gist of the instruction, and (3) the failure to give the instruction

substantially impaired the defendant’s ability to present an effective defense.” Id.

(citations and quotation marks omitted).



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      The district court did not abuse its discretion by declining to give Watson’s

proposed instructions. Watson’s first proposed instruction concerning a tribe’s

ability to adopt new members was substantially covered by the court’s instruction

that a tribe has the right to determine its own membership, just as any other

corporation or association does. The district court also rejected Watson’s third

proposed instruction concerning the ability of a tribe to determine its own

substantive law. The court’s refusal to give either proposed instruction did not

impede Watson’s ability to present an effective defense because he was still able to

argue to the jury that he legitimately believed that he had the authority to solicit

new members on behalf of the Pembina Nation and that membership in the tribe

would allow unlawful aliens to reside and work in the United States.

                                           V.

      Watson also raises several challenges to his sentences.

                                           A.

        First, Watson contends that the district court violated Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), Blakely v. Washington, 542 U.S. 296,

124 S.Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738

(2005), by enhancing his sentence based upon facts not found by the jury. We

addressed a district court’s ability to make factual findings at sentencing in United



                                            8
States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), noting that Booker does not

prohibit a district court from making extra-verdict factual findings at sentencing by

a preponderance of the evidence, provided that the court treats the resulting

guideline range as advisory. Id. at 1301. That decision and others foreclose

Watson’s arguments concerning Apprendi, Blakely, and Booker.

                                          B.

      Next, Watson contends that the district court clearly erred by applying two

sentencing enhancements based on extra-verdict factual findings concering the

number of victims of his fraud scheme and the number of illegal aliens that he

harbored. We review a district court’s factual findings under the sentencing

guidelines only for clear error. United States v. De La Cruz Suarez, 601 F.3d

1202, 1220–21 (11th Cir. 2010).

      First, Watson challenges the district court’s sentencing enhancement for a

fraud offense involving 250 or more victims. Section 2B1.1(b)(2)(C) of the

sentencing guidelines states that a six-level sentencing enhancement should be

imposed if a defendant’s fraud offense involved 250 or more victims. A “victim”

under Section 2B1.1 is “any person who sustained any part of the actual loss”

attributable to the fraud. U.S.S.G. § 2B1.1 cmt. n.1.

      The evidence showed that Universal Service charged $1,500 for each person



                                          9
who completed a membership application and that Universal Service had earned

and deposited approximately $1,126,0781 based on the fees it had collected with

applications as part of the fraud scheme. Dividing that amount by $1,500 per client

yields a total of over 750 victims, a total that is well over the threshold. Federal

agents also recovered over 600 client files from Watson’s residence, most of which

contained information from applicants who were natives of South American

countries, and Watson admitted that he had sponsored over 2,000 illegal aliens for

membership in the Pembina Nation. Therefore, the district court did not clearly err

in finding that Watson perpetrated his fraud on 250 or more victims.

       Watson also challenges the district court’s finding that his offense warranted

a sentencing enhancement because it involved the harboring of 100 or more

unlawful aliens. Section 2L1.1(b)(2)(C) of the sentencing guidlines provides that a

defendant’s base offense level should be increased by nine levels if the offense

involved the smuggling, transporting, or harboring of 100 or more unlawful aliens.

       The district court did not clearly err by concluding that Watson harbored

over 100 unlawful aliens based on his own testimony that he sponsored over 2,000

unlawful aliens for membership in the Pembina Nation, thereby encouraging them


       1
          Watson takes issue with calculating the number of victims based on the total amount of
money earned by Universal Service because there was evidence that he issued refunds to some
of his clients. However, the $1,126,078 figure is the amount of the deposits into the two accounts
belonging to Universal Service minus any identifiable refunds.

                                               10
to reside in the United States when he knew that their adoption by the Pembina

Nation would not affect their status as unlawful aliens. The district court’s

conclusion was further supported by both the calculation that the fraud involved

well over 250 victims and the fact that agents found over 600 client files in

Watson’s residence, most of which were from applicants originating from South

American countries.

                                          C.

      Watson also argues that his sentences are procedurally unreasonable because

the district court did not adequately consider the 18 U.S.C. § 3553(a) factors or

explain why it rejected his arguments for a downward variance. When reviewing

sentencing decisions for abuse of discretion, we utilize a two-step process. “First,

we review to ‘ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence-including an explanation for any deviation from the

Guidelines range.’” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009)

(quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007)). The

district court need not specifically discuss each § 3553(a) factor, provided that the



                                          11
court acknowledges that it considered all of the factors. United States v. Talley,

431 F.3d 784, 786 (11th Cir. 2005).

      If the district court’s sentencing decision is procedurally sound, we move on

to the second step where we must determine whether the sentence is substantively

reasonable in light of the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128

S.Ct. at 597. The district court’s sentencing decision will be set aside only if we

determine, “after giving a full measure of deference to the sentencing judge, that

the sentence imposed truly is unreasonable.” United States v. Irey, 2010 WL

2949465, at *26 (11th Cir. 2010). “Although we do not automatically presume a

sentence within the guidelines range is reasonable, we ‘ordinarily . . . expect a

sentence within the Guidelines range to be reasonable.’” United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (quoting Talley, 431 F.3d at 788)).

      Here, the district court did not commit any procedural errors in sentencing

Watson. The district court was not required to specifically respond to Watson’s

arguments for a downward variance, and the court indicated that it had considered

the parties’ arguments as well as the § 3553(a) factors in determining an

appropriate sentence. The court explained that a sentence at the low end of the

guideline range was sufficient to provide adequate punishment and to deter future

criminal conduct. The court’s explanation showed that it considered Watson’s



                                          12
arguments and the statutory factors, and that the court had a reasoned basis for the

sentence it elected to impose.

                                          D.

      Finally, Watson asserts that his sentence is substantively unreasonable.

Since Watson’s total sentence is at the low end of his advisory guideline range and

well below the statutory maximum, we ordinarily expect it to be reasonable, and

there is no evidence to suggest that the sentence “truly is unreasonable.” Irey,

2010 WL 2949465, at *26. Therefore, the district court did not abuse its discretion

by sentencing Watson to a total term of 168 months imprisonment.

      AFFIRMED.




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