           Case: 14-13194   Date Filed: 08/18/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13194
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:13-cr-60029-RNS-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

HERVE WILMORE, JR.,
DELVIN JEAN BAPTISTE,

                                                       Defendants-Appellants.



                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                      ________________________

                            (August 18, 2015)

Before HULL, JULIE CARNES and BLACK, Circuit Judges.

PER CURIAM:
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       Herve Wilmore, Jr. appeals his convictions and total sentence of 240

months’ imprisonment. He argues (1) sufficient evidence does not support his

convictions for conspiracy under 18 U.S.C. § 371, wire fraud under 18 U.S.C.

§ 1343, and aggravated identity theft under 18 U.S.C. § 1028A(a)(1); (2) the

district court erred in declining to give an aiding and abetting jury instruction; (3)

the district court erred in enhancing his sentence for the loss amount, number of

victims, leadership, and the use of sophisticated means; and (4) his sentence was

substantively unreasonable.1 Devin Jean Baptiste appeals his convictions for

conspiracy, wire fraud, and aggravated identity theft, arguing sufficient evidence

did not support the convictions. As the parties are familiar with the facts of this

case, we will not recount them in detail. We include only those facts necessary to

the discussion of each issue. Upon review, 2 we affirm.


       1
         Wilmore’s brief states in a heading and in the conclusion that the district court erred by
imposing restitution of $20,246,577, but Wilmore makes no arguments in support of that
statement. As such, Wilmore has abandoned any restitution argument. See United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim or issue
on appeal must plainly and prominent so indicate.”).
       2
           We review sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences and credibility choices in
favor of the jury’s verdict. United States v. Ramirez, 426 F.3d 1344, 1351 (11th Cir. 2005). We
review findings of fact for clear error and application of the sentencing guidelines de novo.
United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009). We review the substantive
reasonableness of a sentence for abuse of discretion. United States v. Dougherty, 754 F.3d 1353,
1361 (11th Cir. 2014), cert. denied, 135 S. Ct. 1186 (2015). Where an argument was not raised
before the district court, we will not correct the alleged error unless (1) there is error; (2) that is
plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005).
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                                 I. DISCUSSION

A. Sufficiency of the Evidence

      Sufficient evidence supported Wilmore’s convictions for conspiracy, wire

fraud, and aggravated identity theft. The Government introduced sufficient

evidence that Wilmore was involved in a conspiracy to defraud the IRS, as it

showed Wilmore knowingly worked with others to prepare and cash fraudulent tax

refund checks. See United States v. Adkinson, 158 F.3d 1147, 1154 (11th Cir.

1998) (holding where the IRS is victim of fraud, the government must prove “there

was an agreement whose purpose was to impede the IRS” and “each defendant

knowingly participated in that conspiracy”). A reasonable jury could also

conclude Wilmore committed wire fraud and aggravated identity theft because the

fraudulently obtained refund checks were sent to addresses that he rented and used.

A jury could have concluded Wilmore knew he was using the identities of real

people because the scheme required the use of real identities. See United States v.

Gomez-Castro, 605 F.3d 1245, 1248 (11th Cir. 2010) (“Both the circumstances in

which an offender obtained a victim’s identity and the offender’s later misuse of

that identity can shed light on the offender’s knowledge about that identity.”). A

jury could find the IRS would have rejected the tax returns had Wilmore not used

real names and corresponding Social Security Numbers.




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      Sufficient evidence also supported Baptiste’s convictions. The Government

introduced evidence that Baptiste frequented Lucky Star Check Cashing, cashed

illegitimate checks at Miami Gardens Check Cashing and Imperial Check Cashing,

established Royal Tax where he filed fraudulent tax returns, and was listed as the

preparer on Jacqueline Jennings’s fraudulent tax returns. While Baptiste disputes

he was the person who actually submitted the fraudulent returns, as a member of a

conspiracy he can be liable even if he did not physically press the button

submitting the returns. See United States v. Mothersill, 87 F.3d 1214, 1218 (11th

Cir. 1996) (“Each party to a continuing conspiracy may be vicariously liable for

substantive criminal offenses committed by a co-conspirator during the course and

in the furtherance of the conspiracy, notwithstanding the party’s non-participation

in the offenses or lack of knowledge thereof.”).

B. Jury Instructions

      The district court did not err in declining to give an instruction on aiding and

abetting. We review Wilmore’s argument for plain error because, by his

admission, he did not object at trial. Wilmore has not cited any authority

establishing a district court errs by not providing an aiding and abetting instruction

when the government did not rely on that theory and when neither side requested

the instruction. As such, there cannot be plain error. See United States v.




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Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (stating that without binding

precedent directly resolving the claim, an alleged error cannot be plain).

C. Sentencing Enhancements

       The district court did not clearly err in holding Wilmore responsible for the

actual loss of approximately $2.9 million3 and enhancing his base offense level by

18 levels. See U.S.S.G. § 2B1.1(b)(1)(J). Because sufficient evidence supported

Wilmore’s conspiracy conviction, he was responsible at sentencing for the

reasonably foreseeable losses of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). The

$2.9 million amount was reasonably foreseeable given Wilmore’s heavy

involvement in the tax fraud conspiracy and his participation from nearly the

beginning of the scheme.

       The district court did not clearly err in applying a 6-level enhancement for

defrauding 250 or more victims. See U.S.S.G. § 2B1.1(b)(2)(C). The evidence

showed that, as part of the conspiracy, Wilmore purchased thousands of stolen

identities from co-conspirators and used those identities to file fraudulent tax

returns.

       The district court did not clearly err in applying a 4-level enhancement based

on Wilmore’s leadership role in the conspiracy. See U.S.S.G. § 3B1.1(a). The


       3
          While the district court overruled Wilmore’s objection to the fraud loss of $20 million,
the district court later, at the request of the Government, ultimately held Wilmore responsible
only for the actual loss of about $2.9 million.
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evidence at trial showed, inter alia, Wilmore served as the president of Worldwide

Financial Multiservices, set up the 4747 Hollywood Boulevard address where

many fraudulent refund checks were sent, and paid employees at the Kennedy

Plaza office to prepare fraudulent returns. While Wilmore was not the sole leader

of the conspiracy, the district court did not clearly err in finding that he was a

leader or organizer. See U.S.S.G. § 3B1.1 comment. (n.4).

      The district court also did not clearly err in imposing a two-level

enhancement for using sophisticated means. See U.S.S.G. § 2B1.1(b)(10)(C). As

a member of the conspiracy, Wilmore concealed his criminal activities though

legitimate-sounding businesses, purchased names and Social Security numbers,

and filed fraudulent tax returns with the IRS. These activities were sufficiently

sophisticated.

D. Substantive Reasonableness of Sentence

      The district court did not abuse its discretion in sentencing Wilmore to 240

months’ imprisonment. The district court considered the 18 U.S.C. § 3553(a)

factors and sentenced Wilmore within the recalculated advisory range. That his

sentence exceeded that of the cooperating witnesses does not make his sentence

substantively unreasonable. See United States v. Docampo, 573 F.3d 1091, 1101

(11th Cir. 2009) (“[D]efendants who cooperate with the government and enter a




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written plea agreement are not similarly situated to a defendant who provides no

assistance to the government and proceeds to trial.”).

                                II. CONCLUSION

      In light of foregoing reasons, we affirm.

      AFFIRMED.




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