              United States Court of Appeals
                           For the Eighth Circuit

                    ___________________________

                            No. 18-2321
                    ___________________________

                         United States of America

                    lllllllllllllllllllllPlaintiff - Appellee

                                       v.

                       Mark Arlin Hammerschmidt

                   lllllllllllllllllllllDefendant - Appellant
                                   ____________

                 Appeal from United States District Court
                  for the District of Minnesota - St. Paul
                              ____________

                         Submitted: April 15, 2019
                           Filed: June 12, 2019
                              [Unpublished]
                              ____________

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
                         ____________

PER CURIAM.
      Mark Hammerschmidt pleaded guilty to two counts of conspiracy to defraud
the United States in violation of 18 U.S.C. § 286. The district court1 sentenced
him to 135 months’ imprisonment. We affirm.

       Hammerschmidt was involved in two schemes to obtain fraudulent tax refunds
from the United States, of which only the second scheme (the Guatemalan
conspiracy) is at issue here. Jorge and Daniz Avila (the Avila brothers) sent
Hammerschmidt the identifying information of more than 500 Guatemalan citizens
that he used to apply for individual taxpayer identification numbers. Hammerschmidt
then filed false tax returns for the Guatemalan citizens—none of whom worked or
resided in the United States—to obtain refunds. The refunds were deposited into
accounts or sent to addresses controlled by Hammerschmidt. Hammerschmidt filed
more than 500 fraudulent federal tax returns for which the Internal Revenue Service
(IRS) paid out $1,787,621.

      The district court originally sentenced Hammerschmidt to 135 months’
imprisonment. We vacated and remanded for resentencing in part because the
government had not proved that he managed or supervised another participant in
accordance with U.S. Sentencing Guidelines (Guidelines or U.S.S.G.) § 3B1.1(b).
See United States v. Hammerschmidt, 881 F.3d 633 (8th Cir. 2018)
(Hammerschmidt I).

     Prior to resentencing, the district court held an evidentiary hearing in which
IRS Special Agent Marissa Pitzen testified. Pitzen stated that others had assisted
Hammerschmidt in the Guatemalan conspiracy, including his wife Ornella
Hammerschmidt and Margarita Ortuno Sanchez, an employee of the
Hammerschmidts’ tax preparation business. Pitzen testified that Ortuno Sanchez had


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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informed law enforcement that Hammerschmidt had instructed her “to write or sign
the names of the Guatemalan citizens for whom those [tax] filings were for.” Pitzen
confirmed that these filings were associated with the Guatemalan conspiracy. Ortuno
Sanchez further told agents that she was aware that the Hammerschmidts were
forging the signatures of the Guatemalan citizens and notarizing documentation
related to IRS filings involved in the Guatemalan conspiracy. She also knew that the
tax documents she signed were related to documentation provided by the Avila
brothers. Ortuno Sanchez stated that she was uncomfortable with “signing other
people’s names that weren’t there” but nevertheless did as she was told.

       At resentencing, the district court applied a three-level role adjustment under
§ 3B1.1(b) because Hammerschmidt had “managed or supervised one or more
participants in the Guatemalan conspiracy . . . , specifically, Margarita Ortuno
Sanchez.”2 The district court determined that Hammerschmidt had a criminal history
category of II and a total offense level of 31, with a Guidelines range of 121 to 151
months’ imprisonment, and sentenced him to 135 months’ imprisonment.

       Hammerschmidt argues that the district court erred in applying the three-level
adjustment under § 3B1.1(b). The government must prove by a preponderance of the
evidence that an aggravating role adjustment applies. United States v. Irlmeier, 750
F.3d 759, 763 (8th Cir. 2014). “The district court’s factual findings, including its
determination of a defendant’s role in the offense, are reviewed for clear error, while
its application of the guidelines to the facts is reviewed de novo.” Id. at 762 (quoting
United States v. Gaines, 639 F.3d 423, 427-28 (8th Cir. 2011)). Section 3B1.1(b)
allows for a three-level adjustment “[i]f the defendant was a manager or supervisor


      2
        The district court stated that even if the three-level role adjustment did not
apply, it “would impose the same sentence” under U.S.S.G. § 3B1.1(c). Because we
conclude that a three-level adjustment under § 3B1.1(b) is warranted, we decline to
address the alternative sentence issue under § 3B1.1(c).

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(but not an organizer or leader) and the criminal activity involved five or more
participants or was otherwise extensive.” In Hammerschmidt I, we concluded that for
the § 3B1.1(b) adjustment to apply, the government must prove that Hammerschmidt
managed or supervised another participant in the Guatemalan conspiracy. See
Hammerschmidt I, 881 F.3d at 637 (explaining that § 3B1.1 application note 2
“clarified that a § 3B1.1 adjustment was appropriate only if the defendant had
organized, led, managed, or supervised another participant”).

        Hammerschmidt asserts that he did not manage or supervise another participant
in the Guatemalan conspiracy. Application note 1 of § 3B1.1 defines a “participant”
as “a person who is criminally responsible for the commission of the offense, but
need not have been convicted.” To be criminally responsible, Ortuno Sanchez must
have known that an agreement existed to defraud the government and must have
knowingly and voluntarily became part of the agreement. See United States v.
Morris, 723 F.3d 934, 939 (8th Cir. 2013) (elements of conspiracy to defraud the
government); see also 18 U.S.C. § 286 (a conspiracy to defraud the United States
involves “obtaining or aiding to obtain the payment or allowance of any false,
fictitious or fraudulent claim”); United States v. Pierre, 825 F.3d 1183, 1193 (11th
Cir. 2016) (“To support a conviction under 18 U.S.C. § 286 . . . the government had
to prove the existence of an agreement to achieve an unlawful objective, the
defendant[s’] knowing and voluntary participation in the conspiracy, and the
commission of an overt act in furtherance of it.” (alteration in original) (internal
quotation marks and citations omitted)).

      Pitzen’s testimony recounts that Ortuno Sanchez knew that Hammerschmidt
and others had made an agreement to file false tax returns because she was aware that
the Hammerschmidts were forging the signatures of the Guatemalan citizens and
notarizing documents involved in the conspiracy. She also knew that the tax
documents she signed related to information provided by the Avila brothers.
Although she did not admit to knowing the purpose of filing false returns, she was an

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employee of a tax preparation business and was uncomfortable forging signatures.
A fair inference from these facts is that she knew the purpose of filing false tax
returns was to obtain tax refunds. See United States v. Londondio, 420 F.3d 777, 786
(8th Cir. 2005) (explaining that knowledge may be proved by circumstantial
evidence). She also complied with Hammerschmidt’s directive to sign the names of
the Guatemalan citizens on tax filings, thereby falsely representing herself as the
taxpayers. See United States v. Louper-Morris, 672 F.3d 539, 561 (8th Cir. 2012)
(determining that individuals who forged signatures on power-of-attorney forms for
the purpose of receiving tax credits were participants under § 3B1.1). The district
court thus did not err in finding that Ortuno Sanchez was a participant and that
Hammerschmidt managed or supervised her.

      The sentence is affirmed.
                      ______________________________




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