                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2312

U NITED STATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

C LAYTON H ILL,
                                               Defendant-Appellant,


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
         No. 1:09-cr-00325-1—Robert W. Gettleman, Judge.



     A RGUED N OVEMBER 1, 2011—D ECIDED JUNE 29, 2012




 Before B AUER, FLAUM and SYKES, Circuit Judges.
  B AUER, Circuit Judge. A grand jury indicted defendant-
appellant Clayton Hill on one count of conspiracy to
defraud the United States in violation of 18 U.S.C. § 286
(“Count 1”), and twenty counts of fraud in connection
with identity theft in violation of 18 U.S.C. § 1028(a)(7).
Hill pleaded guilty to Count 1 and to one count of fraud
in connection with identity theft (“Count 22”). The
district court sentenced Hill to 92 months in prison. This
appeal followed. We affirm.
2                                             No. 11-2312

                  I. BACKGROUND
  Hill, along with his wife and co-defendant
Tamara Davidson, devised a scheme to defraud the
Internal Revenue Service (“the Government”) by filing
false tax returns for the tax year 2005. Hill fraudulently
used the identities of two of his neighbors, obtained
credit cards in their name, and incorporated a tax
service business to be run out of his Chicago apart-
ment called “Harding Tax Service.” Hill and Davidson
then obtained the names, birth dates, and social security
numbers of real individuals and, via Harding Tax
Service, filed approximately 121 false tax returns for the
tax year 2005, amounting to approximately $525,460
in false filings. In total, the Government issued approxi-
mately $353,500 in tax refunds. The false filings stated
that the taxpayers had applied to receive a refund anti-
cipation loan through Hong Kong and Shanghai Banking
Corporation, and upon approval, the funds were then
electronically transferred in the amount of each tax
refund to a value card which Hill was able to redeem
for cash.


                   II. DISCUSSION
  Hill maintains that the district court erred when it
increased Hill’s base offense level by fourteen levels,
pursuant to United States Sentencing Guideline
(“U.S.S.G.”) § 2B1.1(b)(1). We review factual findings for
clear error and the interpretation and application of the
Sentencing Guidelines de novo. United States v. Eubanks,
593 F.3d 645, 649 (7th Cir. 2010).
No. 11-2312                                                 3

  For a sentence to be properly calculated, the Guidelines
require a base offense level be established. If a defendant
is convicted of multiple counts involving substantially
the same harm, the counts may be grouped together to
establish a single base offense level. United States Sen-
tencing Commission, Guidelines Manual, § 3D.1.2 (Nov.
2011). To determine the offense level for the group, the
offense levels for each count must first be calculated
individually. The base offense level of the most serious
count is then the base offense level for the group. U.S.S.G.
§ 3D1.3.
  With regard to Count 1, 18 U.S.C. § 286 requires the
application of U.S.S.G. §§ 2T1.1 and 2T4.1 when applying
a tax loss amount of $525,460. This results in a base
offense level of 20. Hill’s use of the sophisticated means, as
described in § 2T1.1(b)(2), increases the base offense
level by two, i.e., an adjusted base offense level of 22.
  As to Count 22, the district court correctly calculated
the base offense level as follows: 18 U.S.C. § 1028(a)(7)
requires the application of U.S.S.G. § 2B1.1(a)(1), resulting
in a base offense level of 6. Applying § 2B1.1(b)(1)(H),
the intended loss of approximately $525,460 requires a
fourteen-level increase. The offense level is further in-
creased by four, based on the number of victims,
pursuant to § 2B1.1(b)(2)(B). Finally, an additional
increase of two levels for Hill’s use of sophisticated
means, results in an adjusted offense level of 26.
  The combined offense level for the group of Counts 1
and 22 was then correctly determined to be 26, the
base offense level for the more serious of the two counts.
4                                                   No. 11-2312

A final adjustment was made by decreasing the com-
bined offense level by three, for Hill’s timely acceptance
of responsibility, resulting in a combined offense level
of 23. This combined offense level of 23, together with
Hill’s criminal history category of VI, resulted in a
U.S.S.G. range of 92-115 months in prison. U.S.S.G., Ch. 5,
Pt. A, Sentencing Table.
  Hill argues, with regard to Count 22, that the district
court was mistaken when it increased his offense level
by 14 levels based on the intended loss to the Govern-
ment because the Government was not a victim of
Count 22. In the alternative, Hill argues that even if the
Government was a victim of Count 22, the loss to the
Government was previously addressed in the tax fraud
calculation for Count 1. According to Hill, to calculate
the loss amount under Count 22 would be to “double
count” the loss and improperly elevate the base
offense level. We reject both of these arguments.
  First, we find that the district court properly deter-
mined that the Government was a victim. Section 1028
of Title 18 relates to “[f]raud and related activity in con-
nection with identification documents, authentication
features, and information.” 18 U.S.C. § 1028. Subsec-
tion (a)(7) clearly states that it is a crime to “knowingly
transfer[ ], possess[ ], or use[ ] . . . a means of identification
of another person with the intent to commit, . . . or in
connection with, any unlawful activity that constitutes a
violation of Federal law.” 18 U.S.C. § 1028(a)(7). The crime
here encompasses more than simple identity theft of an
individual. By his own admission, Hill’s scheme was to
No. 11-2312                                             5

steal the names and social security numbers of indi-
viduals for the purpose of misleading and stealing
money from the Government. Hill filed approximately
$545,460 in fraudulent tax refund claims, and received
$353,500 in refunds from the Government. The district
court’s interpretation of § 1028(a)(7) was correct; Hill’s
actions violated § 1028(a)(7) and the Government was
indeed a victim of both Counts 1 and 22.
  Hill’s alternative argument regarding his claim of
double counting is simply wrong. As we recently held
in United States v. Vizcarra, “double counting is gen-
erally permissible unless the text of the guidelines ex-
pressly prohibits it.” United States v. Vizcarra, 668 F.3d
516, 519 (7th Cir. 2012). Vizcarra noted that “[a] struc-
tural feature of guidelines sentencing is that distinct
aspects of a defendant’s conduct will support respective
increases in punishment through multiple sentencing
enhancements, adjustments, or other determinations
specified in the guidelines.” Id. In the present case, the
need to group Counts 1 and 22 is one such example. Here,
the statutory basis for Count 1 charged a conspiracy to
defraud the Government with respect to claims, and the
appropriate Sentencing Guidelines require a calculation
of tax loss. Similarly, the statutory basis for Count 22
charged fraud and related activity in connection with
identification documents, authentication features, and
information; the governing Sentencing Guidelines call
for consideration of specific offense characteristics, in-
cluding the amount of loss to the victims. None of these
Sentencing Guidelines is changed by the fact that
Hill happened to commit both crimes. As stated, when
6                                                 No. 11-2312

multiple counts are grouped to establish one base
offense level, each count is calculated separately before
the group adopts the offense level of the most serious
count. So while Hill’s tax fraud was addressed with
respect to Count 1 in U.S.S.G. § 2T1.1, the same fraud
was also a critical component to Count 22 and U.S.S.G.
§ 2B1.1. The district court was correct to incorporate it
in its calculation.
  Hill’s final argument is that the district court created
an unwarranted sentencing disparity between him and
his co-defendant Davidson, who received a sentence of
6 months and 13 days, compared with Hill’s 92-month
sentence. We review the reasonableness of the district
court’s sentence for abuse of discretion. United States
v. Favara, 615 F. 3d 824, 829 (7th Cir. 2010); United States v.
Poetz, 582 F.3d 835, 837 (7th Cir. 2009). A properly cal-
culated within-Guidelines sentence is presumptively
reasonable. United States v. Jackson, 547 F.3d 786, 792 (7th
Cir. 2008); see also Rita v. United States, 127 U.S. 2456,
2462 (2007).
  Section 3553 pertains to factors the court should con-
sider when imposing a sentence. Subsection (a)(6) states
that there is a “need to avoid unwarranted sentencing
disparities among defendants with similar records
who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). Clearly, there is a disparity in Hill’s
and Davidson’s sentences. However, Hill has failed to
persuade us that the disparity was unwarranted. Hill
had a criminal history category of VI, whereas David-
son had a criminal history category of I, a distinction sig-
No. 11-2312                                         7

nificant enough to warrant disparity. Furthermore,
Hill and Davidson engaged in different criminal con-
duct, all of which occurred under Hill’s direction and
leadership. The district court sufficiently considered
the § 3553 sentencing factors when imposing the sen-
tences, and the fact that the district court imposed a
lesser sentence on his co-defendant does not negate
the reasonableness of the sentence the court imposed
on Hill.
 We A FFIRM the district court’s sentence.




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