                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                    No. 08-14154                        FEBRUARY 4, 2010
                              ________________________                     JOHN LEY
                                                                         ACTING CLERK
                       D. C. Docket No. 06-00072-CR-01-JTC-1

UNITED STATES OF AMERICA,


                                                                          Plaintiff-Appellee,

                                            versus

EMMA GERALD,
DOUGLAS ROSS,
HUDSON ARAUJO,


                                                                    Defendants-Appellants.


                              ________________________

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

                                     (February 4, 2010)

Before TJOFLAT and BARKETT, Circuit Judges, and BARZILAY,* Judge.

       *
         The Honorable Judith M. Barzilay, Judge, United States Court of International
Trade, sitting by designation.
PER CURIAM:

       Hudson Araujo, Douglas Ross, and Emma Gerald were convicted, after a

jury trial, for their roles in a scheme in which they instructed immigrants, most of

whom were illegally in the United States, how to prepare and file fraudulent

applications with the United States Citizenship and Immigration Services of the

Department of Homeland Security (“USCIS”) for temporary residence, for

temporary employment authorization, and also for travel authorization in the

United States.1

       The appellants all appeal their convictions, raising several different grounds.

Ross and Araujo challenge the sufficiency of the evidence underlying their

convictions. Ross and Gerald argue that the district court erred in giving the jury

an instruction on deliberate indifference. Gerald additionally argues that (1) her

due process rights were violated because the district court failed to adequately voir

dire the jury about immigration matters, and (2) the district court improperly

chastised defense counsel and criticized the defense case, thereby violating her

right to counsel and due process. Finally, Gerald appeals her sentence on the



       1
         Gerald was convicted of: (1) conspiracy to defraud the United States, under 18 U.S.C. §
371; (2) making false statements, under 18 U.S.C. § 1001; and (3) two counts of money
laundering, under 18 U.S.C. § 1957.
       Ross and Araujo were convicted of conspiracy to defraud the United States, under 18
U.S.C. § 371.

                                               2
grounds that it was procedurally and substantively unreasonable.

                                I. BACKGROUND

      Emma Gerald operated a business known as “EJ Consulting Services” and

held herself out as a consultant with immigration experience. At meetings around

the country, Gerald instructed immigrants, many of whom were illegally in the

United States, how to prepare and file fraudulent applications with USCIS for

temporary residence, employment authorization, and travel authorization. Ross,

who is Gerald’s son, attended the meetings and acted as her assistant. Araujo, with

Gerald’s assistance, filed one fraudulent application with USCIS and thereafter

assisted her with setting up and conducting meetings in Massachusetts, seeking

more applicants.

      The fraudulent applications were filed under a USCIS-administered program

known as the CSS/Newman/LULAC amnesty program (“amnesty program”),

which provided that immigrants who met certain basic admissibility requirements

and had been illegally present in the United States prior to January 1, 1982 were

entitled to apply for temporary resident status. The program also permitted those

immigrants who met the stated criteria, but whose earlier applications were denied

because they had traveled outside the United States during their illegal residence,

to re-apply for temporary residence. In order to re-apply, the immigrant would fill



                                          3
out a worksheet that established that he or she met the specific eligibility

requirements. Once the immigrant applied for temporary residence, he or she also

became eligible for employment authorization and travel authorization. Gerald

charged the immigrants a non-refundable fee of $300 per person or $500 per

married couple for assisting in the completion of the forms and filing the

completed applications. Over time, this fee increased to $600 per person and

$1100 per married couple.

       Several of the meetings Gerald held were at the Bethel Christian Church in

Marietta, Georgia. Kayttie Nogueira, who was then seventeen-years-old and a

church member, served as Gerald’s Portuguese translator for those meetings,2

prepared a flyer at Gerald’s request that advertised Gerald’s services and contact

information, and wrote residency letters after Gerald emailed to her a list of names.

       At the first few meetings at Bethel Christian Church, the applicants signed

blank applications for temporary residence. Those applications were later

completed by Gerald and Ross outside of the presence of the applicant and mailed

to USCIS without the applicant ever reviewing the eligibility and admissibility

information. At subsequent meetings in Georgia, Florida, and Massachusetts,

Gerald changed the method for completing applications. Applicants were given


       2
         Gerald spoke English only and the majority of the attendees were Brazilians who spoke
only Portuguese.

                                               4
applications, and Gerald supplied them with the “correct” answers to the questions.

Gerald did not read or explain any of the questions nor did she permit the

applicants to leave with the applications after her presentation; instead, she mailed

them to USCIS.

      When applicants expressed their concern that they did not meet the

requirements under the amnesty program to Gerald, she reassured them that their

ineligibility was not a concern because the Government did not have any records

establishing whether they had been illegally in the United States prior to 1982 nor

whether they had previously applied for the amnesty program and been denied.

The applicants signed form letters, which were then included with their

applications, stating that they or their parents had been in the United States prior to

1982. On some occasions, Gerald and others prepared applications for people who

had never been to the United States. Those applications were completed pursuant

to Gerald’s instructions and mailed to the applicants outside the United States for

their signatures.

      After a jury trial, Gerald, Ross, and Araujo were convicted of all the charges

and timely filed their respective appeals.




                                             5
                                  II. DISCUSSION

A.    Araujo’s, Gerald’s, and Ross’s Convictions

      1.     Sufficiency of the Evidence Supporting Araujo’s and Ross’s
             Convictions

      Viewing the evidence in the light most favorable to the Government, see

United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir. 2000), we find no merit to

the contention that there was insufficient evidence to support Araujo’s and Ross’s

conspiracy convictions. The testimony established that Ross attended meetings

with Gerald in Georgia, Florida, Massachusetts, and California, passed out

applications and residency letters, collected money, completed applications signed

by applicants, signed residency letters, and gave applicants receipts for their

payments. Witnesses also testified that Araujo collected entrance fees, introduced

Gerald at the beginning of the meetings, passed out applications and residency

letters, and reviewed each applicant’s completed application at the end of the

meetings. In addition, Ross and Araujo were present at meetings in which Gerald

informed the applicants that the Government lacked any records or ability to

ascertain their ineligibility for the amnesty program and directed the applicants,

using transparencies of the application pages on an overhead projector, how to

complete the temporary residence applications with the “correct” (i.e. fraudulent)

answers. In short, there was sufficient evidence to sustain Araujo and Ross’s

                                           6
conspiracy convictions.

       2.     The District Court’s Voir Dire About Immigration Matters

       Gerald claims that the district court failed to adequately voir dire the jury

about immigration matters. Gerald’s counsel proposed the following instruction:

“Do you think there are any conditions under which illegal immigrants should be

given amnesty and allowed to become legal residents?” He then orally modified

the proposed instruction: “Does anyone think it is appropriate for illegal

immigrants to be given amnesty?” and “[Does anyone t]hink it is inappropriate?”

The district court instead asked: “Do any of you feel so strongly about [the] issue

[of amnesty] that if I give you your instructions on the law as to when amnesty is

and when amnesty is not appropriate, you would not be able to follow my

instructions?” The record reflects that no defendant objected to the amnesty

question posed by the district court, nor did any of the defendants request any

further voir dire by the court. Thus, our review is for plain error, and, under the

circumstances in this case, we find none. See United States v. Corey, 625 F.2d

704, 708 (5th Cir. 1980)3 (holding that the district court did not err when it

declined to use defendant’s proposed questions and “adequately covered the



       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.

                                               7
essence of the proposed questions” through its own examination).

       3.     Limitation on Gerald’s Direct Examination

       Likewise, the record fails to support the claim that the district court

improperly chastised defense counsel and criticized the defense case. Rather, the

record reflects that the district court interrupted Gerald’s testimony—after giving

her considerable leeway—to limit it to matters relevant to the case. Similarly, the

district court interrupted defense counsel’s questioning about the amnesty forms to

ensure that the questioning would focus on the “portions on the application which

[were] in question in the suit.” In addition, at the end of the trial, the district court

instructed the jury that it was to ignore any comments that the court had made

during the trial and reiterated that the jurors were the final arbiters of the facts.

Given the district court’s wide discretion in limiting repetitive or irrelevant

testimony and its curative instructions, we cannot say that the district court abused

its discretion in this case. See United States v. Day, 405 F.3d 1293, 1297 (11th

Cir. 2005) (holding that district court enjoys broad latitude in managing a trial,

including commenting on evidence, questioning witnesses, clarifying facts, and

limiting counsel’s examinations).




                                             8
      4.     The Deliberate Ignorance Jury Instruction

      Finally, Gerald and Ross argue that the district court erred in giving an

instruction on deliberate ignorance (as proof of knowledge) when all of the

evidence presented pointed to actual knowledge of the fraud. This Court has held

that when evidence of actual knowledge is “so overwhelming as to compel a guilty

verdict,” the district court’s error in giving a deliberate ignorance instruction is

harmless. United States v. Rivera, 944 F.2d 1563, 1572-73 (11th Cir. 1991).

Because the evidence of Gerald’s and Ross’s actual knowledge was overwhelming,

as we have described herein, we find any error harmless.

B.    Procedural and Substantive Reasonableness of Gerald’s Sentence

      We review the sentence imposed by the district court for reasonableness.

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (citing United States v.

Booker, 543 U.S. 220, 260-61 (2005)). After Booker, sentencing requires two

steps. First, the district court must consult the United States Sentencing Guidelines

and correctly calculate the range provided by the Guidelines. See United States v.

Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (citation omitted). Second, the




                                            9
district court must consider the factors delineated in 18 U.S.C. § 3553(a).4 Id.

       1.      Sentencing Guidelines Calculation

       On appeal, Gerald argues that the district court’s sentence was procedurally

unreasonable because she should not have received an enhancement for involving a

minor in her offense under Guideline § 3B1.4. Gerald contends that she did not

recruit the then-seventeen-year-old Nogueira, that Nogueira was the one who

invited her to the church, and that the fact that they were co-conspirators or

confederates was insufficient to support the enhancement. Gerald adds that she

never directed or asked Nogueira to interpret for her, as Nogueira did this as a part

of her membership with the church, and that she did not ask Nogueira to write

letters for immigrants, as the immigrants, not Gerald, requested this service.

       We review the district court’s interpretation of the Guidelines de novo, and

we accept its factual findings unless clearly erroneous. United States v. Jordi, 418

F.3d 1212, 1214 (11th Cir. 2005). The district court must interpret the Guidelines

and calculate the sentence correctly; an error in the district court’s calculation of



       4
         Several factors are considered when determining a reasonable sentence: (1) the nature
and circumstances of the offense and the history and characteristics of the defendant; (2) the
need to reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
need to provide the defendant with needed educational or vocational training or medical care; (6)
the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
and (10) the need to provide restitution to victims.

                                                10
the advisory Guidelines range warrants vacating the sentence, unless the error is

harmless. See United States v. Scott, 441 F.3d 1322, 1329-30 (11th Cir. 2006)

(applying harmless error review to Guidelines miscalculation). The Government

must establish the facts necessary to support a sentencing enhancement by a

preponderance of the evidence. See United States v. Perez-Oliveros, 479 F.3d 779,

783 (11th Cir. 2007).

      The relevant Sentencing Guideline provides for a two-level enhancement

“[i]f the defendant used or attempted to use a person less than eighteen years of age

to commit the offense or assist in avoiding detection of, or apprehension for, the

offense[.]” U.S.S.G. § 3B1.4. The application notes provide that “‘[u]sed or

attempted to use’ includes directing, commanding, encouraging, intimidating,

counseling, training, procuring, recruiting, or soliciting.” Id. Cmt. 1. This Court

has held that “a § 3B1.4 adjustment is warranted only where the defendant takes

some affirmative step to involve a minor in the commission of the criminal

activity.” United States v. Taber, 497 F.3d 1177, 1181 (11th Cir. 2007), cert.

denied, 128 S. Ct. 949 (2008). This Court has also noted that “[t]he unambiguous

legislative design of section 3B1.4 is to protect minors as a class from being

solicited, procured, recruited, counseled, encouraged, trained, directed,

commanded, intimidated, or otherwise used to commit crime.” United States v.



                                          11
McClain, 252 F.3d 1279, 1286 (11th Cir. 2001) (internal quotation marks and

citations omitted).

      Here, there is no dispute that Nogueira was a minor during Gerald’s

commission of the offenses. The record clearly shows, based on Nogueira’s own

testimony, that, as required under § 3B1.4, Gerald took multiple affirmative acts to

involve Noguiera in the crime, such that Noguiera’s involvement was directly

foreseeable to Gerald. See id. at 1288 (emphasizing foreseeability). Specifically,

Gerald used and directed Nogueira to schedule the meetings at the church, pass out

information to the applicants, translate for her during multiple meetings at Bethel

Christian Church, complete falsified residency letters (including translated letters),

and arrange meetings. Gerald also paid Noguiera $100 to create a flyer that

promoted Gerald’s “immigration consulting” services and provided Gerald’s

contact information. Nogueira helped Gerald in her scheme and was not merely

present during the offense. Taber, 497 F.3d at 1181 (holding that defendant’s

affirmative acts of driving minor to robbery, helping minor enter the building, and

serving as a look-out for the minor warranted sentencing enhancement). Certainly,

Nogueira’s actions furthered Gerald’s scheme, but Gerald also actively encouraged

Nogueira to commit a crime herself by preparing fraudulent letters for the purposes

of obtaining an immigration benefit. U.S.S.G. § 3B1.4; 18 U.S.C. §§ 1001,



                                          12
1546(a). The district court did not err by finding that Noguiera’s role was an

important one and applying the two-level enhancement.

      2.     Reasonableness of the Sentence Imposed

      Next, Gerald argues that her 108-month sentence was substantively

unreasonable under the § 3553(a) factors. She argues that her criminal conduct

over a six-month period paled in comparison to the rest of her life, that her conduct

did not harm the Government because the immigrants had already illegally entered

by the time she counseled them and her actions did not change their illegal status,

and that she actually brought a benefit to the Government by notifying it of each

immigrant’s presence in the country. Furthermore, Gerald argues that, based on

her age and the non-violent nature of her crime, there was no reason to impose a

108-month sentence because she had a very low risk of recidivism, had learned the

lessons of her actions, did not present a harm to the public, and had already

suffered enough punishment. Gerald argues that a sentence of sixty months is

appropriate based upon other cases involving similar conduct.

      If the Guidelines calculation is correct or the miscalculation is harmless, we

consider whether the sentence is reasonable. Talley, 431 F.3d at 786. When

reviewing a sentence for reasonableness, we must evaluate the reasons given by the

district court and whether the sentence achieves the purposes of sentencing



                                          13
provided for in § 3553(a). Id. The party challenging the sentence bears the burden

of establishing the sentence is unreasonable in light of the § 3553(a) factors. Id. at

788.

       Here, the record demonstrates that the district court conducted a thorough

and well-considered sentencing hearing. After hearing arguments from both

parties on all the § 3553 factors, the district court granted some of the

enhancements sought by the Government but it denied others. Moreover, the

district court denied both the Government’s (upward) and Gerald’s (downward)

motions for a variance sentence. Also, after weighing all the relevant factors, the

district court concluded that a sentence within the Guidelines range was reasonable

under § 3553(a).

       We do not find Gerald’s 108-month sentence substantively unreasonable.

Specifically, the sentence reflects the seriousness of the offense given that her

scheme involved a substantial number of fraudulent applications (over 1,000),

covered many states, used a religious organization to launder money, and used a

minor in the offense. Among other § 3553(a) factors, the district court’s

conclusion that Gerald showed a clear disregard for the law and the courts was

supported by the extensive scale of the fraud on the Government. In light of the

record, Gerald has not demonstrated that her within-Guidelines sentence is



                                           14
substantively unreasonable. Talley, 431 F.3d at 788. The cases cited by Gerald in

which a lower sentence was imposed are inapposite because those cases involved

schemes much less extensive than Gerald’s and, unlike Gerald, those defendants

pled guilty and accepted responsibility. Accordingly, the district court did not err

in imposing the 108-month incarceration.

                                III. CONCLUSION

      In sum, we conclude that there were no errors underlying the convictions of

Araujo, Gerald, and Ross. Additionally, we conclude that Gerald’s sentence was

procedurally and substantively reasonable.

      AFFIRMED.




                                          15
