                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              June 25, 2008
                             No. 07-15699                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 07-00030-CR-01-JOF-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

LAREDO MICHAEL SIMPSON,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (June 25, 2008)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Laredo Michael Simpson appeals his 41-month sentence, imposed after he

pled guilty to (1) one count of preparing and submitting to the Internal Revenue

Service (“IRS”) a fraudulent income tax return claiming a false refund, in violation

of 18 U.S.C. § 287; and (2) three counts of preparing and submitting, or causing

others to prepare and submit, to the IRS fraudulent income tax returns claiming

false refunds, in violation of § 287 and 18 U.S.C. § 2. On appeal, Simpson argues

that the district court (1) clearly erred in imposing a two-level enhancement,

pursuant to U.S.S.G. § 2B1.1(b)(10)(C)(I), for the unauthorized transfer or use of

any means of identification unlawfully to produce or obtain any other means of

identification, on the ground that “the taxpayers” gave him their personal

information; (2) clearly erred in imposing a two-level enhancement, pursuant to

U.S.S.G. § 3C1.1, for obstruction of justice, on the ground that he did not instruct a

witness to lie to the IRS, as alleged; (3) clearly erred by denying a three-level

reduction, pursuant to U.S.S.G. § 3E1.1, for acceptance of responsibility, on the

ground that he accepted responsibility by pleading guilty; and (4) imposed an

unreasonable sentence by failing to consider the factors set out in 18 U.S.C.

§ 3553(a). For the reasons discussed below, we affirm.

                                           I.

      Simpson submitted to the IRS with his individual tax return a fictitious W-2



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statement that included inflated earnings from, and withholdings by, his employer.

Simpson also used the names and social security numbers of Corye E. Dorsey,

Vickie D. Harris, and Elisha L. Willis to file tax returns. With their tax returns,

Simpson submitted fictitious W-2 statements including false employers, earnings,

and withholding amounts. Simpson received tax refunds in connection with these

tax returns. Regarding Dorsey and Willis, Simpson also used their names and

social security numbers to establish bank accounts for the purpose of receiving the

tax refunds. Although he did not plead guilty to these other acts, Simpson also

used the names and social security numbers of others to file at least 16 other tax

returns, and submitted, with these tax returns, fictitious W-2 statements that

included false employers, earnings, and withholding amounts.

      The IRS interviewed several of the people whose personal information

Simpson used. Some of these people indicated that they were aware that Simpson

was filing their tax returns. The record does not clarify whether these people knew

that Simpson was using false information to do so. Some of these people indicated

that they were aware that Simpson was filing their tax returns, but were not aware

that he was using false information to do so. Some of these people indicated that

they were not aware that Simpson was using their names and social security

numbers to file tax returns and had not given him permission to do so. The record



                                           3
does not clarify into which category of knowledge Dorsey or Willis fell.

       One of the people whose social security numbers were used, Tsushima

Marshall, reported to the IRS that, approximately one hour after her initial IRS

interview, Simpson called her on the telephone and instructed her that she might be

interviewed by the IRS and should deny knowing him. Simpson instructed

Marshall to instead claim that someone else prepared her tax return for the year in

question. Also, during a post-conviction interview with a probation officer

concerning his assets, Simpson only reported ownership of a single residence.

This information, which was used to set Simpson’s bond, later was determined to

be inaccurate when the probation officer learned that Simpson also had ownership

interests in five other residences. Furthermore, although Simpson was indicted on

January 23, 2007, for his activity within the tax-return scheme, he later attempted,

on January 27, 2007, to submit to the IRS with his individual tax return a fictitious

W-2 form that included inflated earnings from and withholdings by his employer.1



       1
         Based on this information, the probation officer calculated a guideline imprisonment
range of 51 to 63 months. Specifically, the probation officer set Simpson’s base offense level at
14, pursuant to U.S.S.G. § 2B1.1(b)(1)(E). The probation officer applied a two-level
enhancement for the unauthorized transfer or use of any means of identification unlawfully to
produce or obtain any other means of identification; a two-level enhancement under U.S.S.G.
§ 3B1.1(c) because Simpson was the organizer, leader, manager, or supervisor of the scheme;
and a two-level enhancement for obstruction of justice. The probation officer declined to apply
an acceptance-of-responsibility reduction, over Simpson’s objection. Also, the probation officer
set Simpson’s criminal history category at IV. Each count of Simpson’s conviction carries a
statutory maximum of 60 months’ imprisonment, pursuant to § 287.

                                                4
      At his sentencing hearing, Simpson apologized for his actions and indicated

that he accepted full responsibility for what he had done. He also stated that:

(1) just before his incarceration, his wife had been a good influence on him, he had

been running a legitimate catering business, and he had been paying child support

and becoming close with his children; (2) his wife had since become sick, and he

would like to return to her as soon as possible; (3) since being incarcerated, he had

behaved and had learned discipline and to live with a little bit, rather than a lot, of

money; and (4) if released, he would not break the law again. The government

requested a sentence at the low end of the guideline imprisonment range.

      The district court acknowledged Simpson’s “problems,” but stated that its

primary objective was to protect society from Simpson. To this end, the district

court noted Simpson’s relatively high criminal history category and stated that

nothing in Simpson’s “track record” indicated that Simpson could or would stay

out of trouble if released. The district court noted that, in its experience, those

convicted of financial fraud have a high tendency toward recidivism. The district

court concluded that, given his criminal history, Simpson did not merit lenient

treatment and that a sentence within Simpson’s guideline imprisonment range

probably did not “adequately capture[] the extent of [Simpson’s] wrongdoing,” but

stated that it would have faith that a guideline sentence would suffice.



                                            5
Accordingly, the district court sentenced Simpson at the low end of that range.2

                                              II.

       After the Supreme Court’s decision in United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must

correctly calculate the guideline imprisonment range and then must treat that range

as advisory and impose a reasonable sentence. United States v. Talley, 431 F.3d

784, 786 (11th Cir. 2005). With regard to the district court’s guideline-

imprisonment-range calculation, we review “the district court’s findings of fact for

clear error and its application of the sentencing guidelines to those facts de novo.”

United States v. Humber, 255 F.3d 1308, 1311 (11th Cir.2001) (citation omitted).

                                               a.

       Pursuant to § 2B1.1(b)(10)(C)(I), a two-level enhancement is warranted

when the defendant’s offense conduct involved “the unauthorized transfer or use of

any means of identification unlawfully to produce or obtain any means of

identification.” “[T]he term ‘means of identification’ refers to any name or

number that may be used, alone or in conjunction with any other information, to

identify a specific individual, including any” name, social security number, or


       2
          The district court calculated a guideline imprisonment range of 41 to 51 months. While
the district court applied the means-of-identification and obstruction-of-justice enhancements
recommended by the probation officer, and also declined to apply an acceptance-of-
responsibility reduction despite Simpson’s objection, it chose not to apply a role enhancement.

                                               6
access device. 18 U.S.C. § 1028(d)(7)(A), (D); U.S.S.G. § 2B1.1, comment.

(n.9(A)). An “access device” includes any “account number” that can be used to

initiate a transfer of funds. 18 U.S.C. § 1029(e)(1). The commentary to § 2B1.1

sets forth examples of the types of conduct to which the means-of-identification

enhancement applies, including when “[a] defendant obtains an individual’s name

and social security number from a source (e.g., from a piece of mail taken from the

individual’s mailbox) and obtains a bank loan in that individual’s name.” U.S.S.G.

§ 2B1.1, comment. (n.9(C)(ii)(I)). The commentary explains that, “[i]n this

example, the account number of the bank loan is the other means of identification

that has been obtained unlawfully.” Id.

      The district court did not err in imposing a means-of-identification

enhancement. See Humber, 255 F.3d at 1311. The record demonstrates that

Simpson obtained Dorsey’s and Willis’s names and social security numbers and

then obtained bank accounts using this information. Accordingly, Simpson used

two means of identification - names and social security numbers - to obtain another

means of identification - bank account numbers. See 18 U.S.C. §§ 1028(d)(7),

1029(e)(1); U.S.S.G. § 2B1.1, comment. (n.9(A), (C)(ii)(I)). The record also

suggests that Simpson obtained and used Dorsey’s and Willis’s names and social

security numbers without their permission. Although Simpson claims that “the



                                          7
taxpayers” provided their information, he presents no evidence to, and the record

otherwise does not, show that Dorsey and Willis gave him their information.

Moreover, Simpson does not argue, and the record otherwise does not suggest, that

Dorsey and Willis gave Simpson permission to use any information provided to

open bank accounts.

                                          b.

      Pursuant to § 3C1.1, a two-level enhancement is warranted when the

defendant willfully obstructs the investigation, prosecution, or sentencing of his

offense of conviction, in a manner related to his offense of conviction, relevant

conduct, or a closely related offense.   The commentary to § 3C1.1 provides a non-

exhaustive list of conduct to which the enhancement might apply, including

“threatening, intimidating, or otherwise unlawfully influencing a codefendant,

witness, or juror, directly or indirectly, or attempting to do so” and “providing

materially false information to a probation officer in respect to a presentence or

other investigation for the court.” U.S.S.G. § 3C1.1, comment. (n. 4(a), (h)). The

commentary, however, also limits the conduct to which the enhancement might

apply, by specifically excluding “providing incomplete or misleading information,

not amounting to a material falsehood, in respect to a presentence investigation.”

U.S.S.G. § 3C1.1, comment. (n. 5(c)). Based on this commentary, we have held



                                           8
that determining whether the enhancement applies depends on whether the

information withheld was material. United States v. Odedina, 980 F.2d 705, 706-

08 (11th Cir. 1993) (regarding a defendant’s failure to disclose to a probation

officer his aliases and prior misdemeanor arrest). The commentary defines

“material” as “evidence, fact, statement, or information that, if believed, would

tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1,

comment. (n. 6).

      The district court did not err in imposing an obstruction-of-justice

enhancement. See Humber, 255 F.3d at 1311. The record demonstrates that

Simpson attempted to influence a witness to lie to the IRS and lied to a probation

officer in the course of the presentence investigation. See U.S.S.G. § 3C1.1,

comment. (n. 4(a)(h)). Although Simpson “vehemently” denied telling Marshall to

lie, an IRS agent told the district court that he overheard Marshall recounting the

situation before testifying before the grand jury. Nothing in the record suggests

that the district court erred in crediting the agent’s statements over Simpson’s

denial. Also, the probation officer informed the district court that Simpson failed

to inform a probation officer of his ownership of certain residences. His ownership

of these assets was material to the presentence investigation because it would tend

to influence the district court to set a higher bond for Simpson. See Odedina, 980



                                          9
F.2d at 706-08; U.S.S.G. § 3C1.1, comment. (n. 6)).

                                           c.

      Pursuant to § 3E1.1, a two-level reduction is warranted if the defendant

“clearly demonstrates acceptance of responsibility for his offense.” An additional

one-level reduction is warranted if the government indicates that the “defendant

has assisted authorities in the investigation or prosecution of his own misconduct

by timely notifying authorities of his intention to enter a plea of guilty.” U.S.S.G.

§3E1.1(b). The commentary to § 3E1.1 instructs that “[c]onduct resulting in an

enhancement under § 3C1.1 (Obstructing or Impeding the Administration of

Justice) ordinarily indicates that the defendant has not accepted responsibility for

his criminal conduct,” such that an obstruction-of-justice enhancement and

acceptance-of-responsibility reduction should be applied in tandem only in

“extraordinary cases.” U.S.S.G. § 3E1.1, comment. (n. 4). The commentary also

instructs that the district court, in determining whether to apply the initial

reduction, may consider the defendant’s “voluntary termination or withdrawal

from criminal conduct or associations.” U.S.S.G. § 3E1.1, comment. (n. 1(b)).

      In United States v. Villarino, 930 F.2d 1527, 1529 (11th Cir. 1991), we

affirmed the denial of an acceptance-of-responsibility reduction on continuing-

criminal-activity grounds when, “although [the] appellant acknowledged



                                           10
responsibility for his criminal behavior, [the PSI demonstrated that] since his

release on bond he has committed, and has been found guilty of, nine additional

offenses.” Likewise, in United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th

Cir. 1989), we affirmed the denial of an acceptance-of-responsibility reduction on

continuing-criminal-activity grounds when the “evidence showed [that the

defendant] continued to use cocaine after his arrest and thus had not turned away

from the lifestyle that motivated his offense.”

      The district court did not err in declining to apply an acceptance-of-

responsibility reduction. See Humber, 255 F.3d at 1311. The record demonstrates

that Simpson continued his criminal activity after being indicted. See U.S.S.G.

§ 3E1.1, comment. (n. 1(b)). Specifically, after being indicted on January 23rd,

Simpson attempted to file a fraudulent individual tax return on January 27th. This

continued criminal activity was not only similar to that in Villarino and Scroggins,

it demonstrated even less acceptance of responsibility because Simpson’s

continued criminal activity involved the same crime as that charged in the

indictment. See Villarino, 930 F.2d 1527 at 1529; Scroggins, 880 F.2d at 1215-16.

Also, as discussed above, Simpson appropriately received an obstruction-of-justice

enhancement, suggesting that he did not accept responsibility. See U.S.S.G.

§ 3E1.1, comment. (n. 4)). Simpson has not demonstrated the “extraordinary”



                                          11
circumstances necessary to overcome this suggestion. See U.S.S.G. § 3E1.1,

comment. (n. 4).

                                          d.

      The district court must impose a sentence that is both procedurally and

substantively reasonable. United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th

Cir. 2006); Gall v. United States, 552 U.S. __, 128 S.Ct. 586, 597, 169 L.Ed.2d

445 (2007). The Supreme Court has held that the reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. Gall, 552 U.S. at __, 128 S.Ct. at

597. “[T]he party who challenges the sentence bears the burden of establishing

that the sentence is unreasonable.” Talley, 431 F.3d at 788.

      The Supreme Court has explained that a sentence may be procedurally

unreasonable if the district court improperly calculates the guideline imprisonment

range, treats the guidelines as mandatory, fails to consider the appropriate statutory

factors, bases the sentence on clearly erroneous facts, or fails to adequately explain

its reasoning. Gall, 552 U.S. __, 128 S.Ct. at 597. The Supreme Court also has

explained that review for substantive reasonableness involves inquiring whether

the statutory factors in § 3553(a) support the sentence in question. Id. at __, 128

S.Ct. at 598-99. Pursuant to § 3553(a), the sentencing court shall impose a

sentence “sufficient, but not greater than necessary” to comply with the purposes



                                          12
of sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the

offense, promoting respect for the law, providing just punishment for the offense,

deterring criminal conduct, protecting the public from future criminal conduct by

the defendant, and providing the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the

sentencing court to consider certain factors, including the nature and circumstances

of the offense and the history and characteristics of the defendant. See 18 U.S.C.

§ 3553(a)(1).

      In considering the § 3553(a) factors and explaining the reasoning behind its

choice of sentence, the district court need not discuss or state that it has explicitly

considered each factor of § 3553(a). Talley, 431 F.3d at 786. Rather, even a brief

explanation of its reasoning, coupled with a clear consideration of the parties’

arguments, will suffice. See Rita, 551 U.S. at __, 127 S.Ct. at 2469.

      The district court did not impose an unreasonable sentence. See Talley, 431

F.3d at 786. Although the district court did not explicitly refer to § 3553(a), the

record makes clear that the district court considered the parties’ arguments and the

principles espoused by § 3553(a). Specifically, before imposing a sentence, the

district court heard the parties’ arguments on the objections and Simpson’s

statement on his character and family’s troubles. The district court explicitly stated



                                           13
that it had considered Simpson’s family’s troubles. Thus, it is clear that the district

court considered the parties’ arguments. See Rita, 551 U.S. at __, 127 S.Ct. at

2469.

        In choosing a sentence, the district court indicated that it especially was

guided by Simpson’s lengthy criminal history, the fear of Simpson’s recidivism,

and the need to protect the public from Simpson. The district court also indicated

that it felt that a 41-month sentence was the minimal sentence that it could impose

and may actually be insufficient. Thus, it is apparent that the district court

implicitly considered the relevant factors, namely Simpson’s history and

characteristics, promoting respect for the law, deterring criminal conduct, and

protecting the public from future criminal conduct by Simpson. See 18 U.S.C.

§ 3553(a)(1), (2); Rita, 551 U.S. at __, 127 S.Ct. at 2469. The fact that the district

court did not consider all of the § 3553(a) factors does not render Simpson’s

sentence unreasonable. See Talley, 431 F.3d at 786. It also is apparent that the

district court strived to impose a sentence that was not greater than necessary. See

18 U.S.C. § 3553(a)(2).

                                          III.

        Because the district court did not clearly err in applying a means-of-

identification and obstruction-of-justice enhancements or denying an acceptance-



                                           14
of-responsibility reduction, and did not impose an unreasonable sentence, we

affirm Simpson’s sentences.

      AFFIRMED.




                                        15
