               Case: 14-10541       Date Filed: 12/30/2015      Page: 1 of 15


                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-10541
                              ________________________

                         D.C. Docket No. 1:13-cr-20339-JIC-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

RIGOBERTO CABRERA,

                                                                      Defendant-Appellant.

                              ________________________

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

                                   (December 30, 2015)

Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and WALTER, *
District Judge.



       *
         Honorable Donald E. Walter, United States Senior District Judge for the Western
District of Louisiana, sitting by designation.
              Case: 14-10541     Date Filed: 12/30/2015   Page: 2 of 15


PER CURIAM:

      Rigoberto Cabrera appeals his conviction and sentence for perpetrating an

income tax fraud scheme.

                                           I.

      The federal government discovered that Cabrera had masterminded an

income tax fraud scheme that worked as follows. Cabrera and his associates would

tell taxpayers they were entitled to tax refunds and offer to help the taxpayers get

the refunds in exchange for a cut of the refund plus a fixed fee. Taxpayers who

accepted the offer of services would give their names, W-2s, and other basic

identifying information to Cabrera or his associates, who would electronically file

the taxpayers’ returns. The returns fraudulently claimed unfounded refunds based

on Form 2439, an obscure IRS form that allows taxpayers a refund for taxes

already paid on previously taxed “undistributed long term capital gains.” The

capital gains identified in the taxpayers’ Form 2439s were falsely attributed to

shell companies set up by Cabrera and his cohorts, who electronically filed

substantially identical Form 2439s for dozens of people, including for Cabrera

himself. In many cases, they used unsuspecting third parties’ unsecured wireless

networks to file the returns, so that it looked like the returns came from people

unaffiliated with the scam.

                                       2
             Case: 14-10541     Date Filed: 12/30/2015   Page: 3 of 15


      As a result of the scheme, the IRS erroneously paid millions of dollars in

undue refunds. When the refunds arrived, Cabrera or an associate would

coordinate with the taxpayers to collect Cabrera’s share. Cabrera arranged with

Elias Obando to create new shell companies with bank accounts into which

Cabrera’s share of the refunds were deposited. Thus laundered, the funds were

then withdrawn and turned over to Cabrera.

      A federal grand jury indicted Cabrera for conspiring to defraud the

government by submitting false tax returns, making false, fictitious, or fraudulent

claims on the government, conspiring to commit wire fraud, committing wire

fraud, conspiring to launder money, and laundering money. Cabrera’s case was

tried before a jury for five days. On the first day, the government introduced

spreadsheets generated by the IRS’s electronic fraud detection system. The

spreadsheets catalogued certain information about electronically-filed returns,

including the name on the return, the internet protocol (IP) address from which the

return was filed, and the date the return was filed. Although Cabrera objected on

the ground that the IRS agent testifying about the spreadsheets was not sufficiently

familiar with how they were generated, the district court overruled Cabrera’s

objection and admitted the spreadsheets into evidence.

      The government presented dozens of witnesses and scores of exhibits tying

Cabrera to the fraudulent returns and to attempts to launder the proceeds. IRS


                                          3
              Case: 14-10541     Date Filed: 12/30/2015   Page: 4 of 15


agents testified about the striking similarities between all of the other Form 2439s

involved in the case and Cabrera’s own fraudulent return. An IRS agent told the

jury that Cabrera had amended his fraudulent return only after the IRS agent

threatened him with prosecution, and that Cabrera nevertheless persisted in lying

about amended return. Some taxpayers told the jury about meeting with Cabrera

and agreeing to let him file their taxes in exchange for promises to pay a

percentage of the refunds they received to companies controlled by Cabrera. The

jury heard from Cabrera’s associates who explained that he paid them to recruit

taxpayers and that he either filed the fraudulent returns himself or instructed others

how to file them. Obando told the jury that Cabrera had tasked him with setting up

shell companies for use in laundering the proceeds from the scam. The

government introduced bank records tracking the proceeds from the fraudulently

obtained refunds — from taxpayers’ bank accounts into the accounts of shell

companies Cabrera ran, and then into Cabrera’s bank account. An IRS computer

expert even showed the jury that Cabrera’s electronic fingerprints were all over the

documents used in the scam. And on and on. The government’s case was

thorough and compelling.

      Near the end of its case-in-chief, the government called IRS agent Karyn

Calabrese to testify about the nature and scope of Cabrera’s scam. After Calabrese

noted that some of the fraudulent returns had been submitted from Marcelle


                                          4
              Case: 14-10541    Date Filed: 12/30/2015   Page: 5 of 15


Boardman’s unsecured residential IP address, the government asked if she had

been able to link Boardman’s IP address to any other returns. Calabrese

responded: “I think there were an additional 27 tax returns that we didn’t present

here,” at which point Cabrera’s counsel objected and asked for a sidebar. At the

sidebar, Cabrera’s counsel argued that the reference to the additional 27 returns

involved “uncharged crimes” and information that had not been disclosed before

trial. The district court overruled the objection and denied Cabrera’s counsel’s

motion for a mistrial. The court then asked Cabrera’s counsel if he wanted a

curative instruction, to which Cabrera’s counsel replied “Okay[,] [t]hat is

satisfactory.” The court promptly instructed the jury that Cabrera was “only on

trial for those crimes charged in the indictment and nothing more,” and the

government continued examining Calabrese.

      Later in Calabrese’s testimony, the government asked if Carlos Mara’s tax

return — which was not among the returns for which the government charged

Cabrera — was among those reflected in the spreadsheets. Cabrera’s counsel

objected and moved to strike, again arguing that the government was seeking to

introduce evidence of uncharged crimes about which there had been no discovery.

The court overruled Cabrera’s objection and allowed the testimony because

Calabrese was addressing returns that “were all filed during the period of time that

the conspiracy has been alleged in the indictment.” Calabrese proceeded to answer


                                          5
              Case: 14-10541    Date Filed: 12/30/2015   Page: 6 of 15


the government’s question, explaining that Mara’s return had been filed from an IP

address associated with Cabrera and one of his shell companies, and that Mara’s

return was filed just a few weeks before Mara sent a sizable payment to that shell

company.

      At the close of the government’s case-in-chief and again at the close of all

evidence, Cabrera moved for judgment of acquittal under Federal Rule of Criminal

Procedure 29. The district court denied both motions. The jury found Cabrera

guilty on all counts.

                                        II.

      The presentence investigation report calculated Cabrera’s guidelines range

by grouping together all closely related counts, as required by U.S.S.G. § 3D1.2.

Because the counts involving fraud were closely related to one another and the

counts involving money laundering were closely related to one another, the PSR

bundled those counts into two groups. The PSR then grouped all the fraud counts

with all the money laundering counts because Cabrera’s money laundering

convictions all involved funds from the fraud.

      To calculate Cabrera’s base offense level, the PSR, consistent with

§ 3D1.3(a), applied the guidelines section addressing the most serious of the

grouped offenses. The most serious of the grouped offenses was money

laundering, which is covered by § 2S1.1. Under § 2S1.1(a)(1), the base offense


                                         6
             Case: 14-10541     Date Filed: 12/30/2015   Page: 7 of 15


level for Cabrera’s money laundering conviction was the total offense level for the

fraud from which the laundered funds derived. To calculate the total offense level

for the fraud convictions, the PSR applied an enhancement under

§ 2B1.1(b)(10)(C) to account for the fact that the fraud involved “sophisticated

means.”

      The PSR ultimately calculated that the total offense level for the fraud

convictions was 29, meaning that under § 2S1.1(a)(1) the base offense level for the

money laundering convictions was 29. To that base offense level, the PSR added

levels to account for the specific characteristics of Cabrera’s money laundering

offenses, including two levels under § 2S1.1(b)(3) because the money laundering

involved sophisticated means.

      Cabrera objected that the PSR failed to group the fraud and money

laundering accounts, exposing him to “impermissible double counting.” He argued

that the PSR improperly penalized him twice — once under § 2B1.1(b)(10)(C) of

the guidelines and once under § 2S1.1(b)(3) of the guidelines — for the fact that

his scheme had been sophisticated.

      An addendum to the PSR responded that the guidelines required grouping

the counts together as it had. In particular, the addendum explained that the

enhancements for sophisticated means in the fraud and sophisticated laundering

accounted for different aspects of the scheme. The sophisticated means


                                         7
                Case: 14-10541   Date Filed: 12/30/2015    Page: 8 of 15


enhancement took into account the fact that Cabrera had used fictitious entities and

shell corporations to attempt to conceal the fraud itself and his role in it. The

sophisticated laundering enhancement was based on Cabrera’s use of

intermediaries and different shell corporations both to hide the origin of the funds

from the fraud and to obscure his involvement in the cover-up.

      Responding to the addendum, Cabrera reasserted his objection and argued

that the rule of lenity required the court to interpret ambiguities in the guidelines’

grouping requirements and sophistication enhancements in the ways most

favorable to him. He maintained his objections to the PSR at sentencing, but the

district court overruled them, finding by a preponderance of the evidence that both

sophistication enhancements — one for fraud and the other for laundering —

should apply. The district court adopted the PSR’s guidelines calculations,

concluding that Cabrera’s guidelines range was 292–365 months. After rejecting

Cabrera’s request for a downward variance, the district court imposed a bottom of

the guidelines range sentence of 292 months, plus $1,526,622 in restitution.

Cabrera timely appealed his conviction and sentence. He challenges the

sufficiency of the evidence against him, the admission of Calabrese’s statements

about so-called “uncharged false returns,” and the district court’s guidelines

calculations.




                                           8
              Case: 14-10541    Date Filed: 12/30/2015    Page: 9 of 15


                                         III.

      We reject Cabrera’s challenge to the sufficiency of the evidence against him.

We will reverse a conviction on sufficiency grounds only if the defendant shows

that “there is no reasonable construction of the evidence from which the jury could

have found the defendant[] guilty beyond a reasonable doubt.” United States v.

Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013). Cabrera has not made that showing

for any of the charged counts. For example, he argues that there was no proof of

his role in any of the conspiracies. But Obando testified at length that Cabrera was

the impresario behind the fraud and the money laundering operation. Cabrera’s

clients told the jury how he had convinced them to let him prepare their taxes.

Lissette Nunez, one of Cabrera’s former employees, told the jury that the people

involved in the fraud schemes “did the work for Rigo,” and he paid them for it.

And FBI Agent Neville Barrant testified that documents integral to the scam bore

identification markers linking them to Cabrera. The jury could reasonably credit

any or all of that testimony and rely on it to find beyond a reasonable doubt that

Cabrera was instrumental in perpetrating the fraud. His sufficiency challenges on

other bases are similarly belied by even the most cursory inspection of the record.

                                         IV.

      Cabrera’s argument that Calabrese’s testimony about “uncharged false

returns” violated his Fifth Amendment right to a fair trial is also meritless. The


                                          9
             Case: 14-10541     Date Filed: 12/30/2015    Page: 10 of 15


admission of evidence at trial violates due process only if “it renders the trial

fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597,

2608 (1991). Calabrese’s passing references to uncharged returns did not render

Cabrera’s trial fundamentally unfair because, among other things, she simply

referred to information in the spreadsheets already before the jury. Calabrese did

not testify about the contents of the uncharged returns or even that the returns were

fraudulent. She merely pointed out geographic, technological, and temporal links

between the charged returns and other returns on the spreadsheets — links that

were already discernible from the spreadsheets themselves. In fact, Calabrese

acknowledged, on the stand, that her testimony “simply [was] that [a private,

unsecured] IP address of internet service was used to send other electronically filed

returns and those [returns] are depicted in [the IRS spreadsheets, exhibits] 69 and

70.” Calabrese’s challenged testimony also could not have lent credibility to the

IRS spreadsheets themselves because she did not testify about the reliability of the

data on the spreadsheets. She testified only that the spreadsheets showed that

certain people’s tax returns had been filed from certain IP addresses at certain

times. Because the testimony did not introduce the jury to new facts or address the

credibility of facts already in evidence, it cannot rationally be said to have unfairly

prejudiced Cabrera, let alone to have made his trial fundamentally unfair. See

Carter v. United States, 362 F.2d 257, 259 (5th Cir. 1966).


                                          10
             Case: 14-10541     Date Filed: 12/30/2015   Page: 11 of 15


                                         V.

      Nor did the government violate Cabrera’s due process rights by failing to

produce the uncharged returns in advance of Calabrese’s testimony. She did not

testify about the contents of the returns; she merely highlighted what the

spreadsheets already showed, which was that certain returns had been filed from

certain IP addresses at certain times. Discovery of the contents of the underlying

returns thus would not have helped Cabrera refute Calabrese’s testimony, meaning

that the government’s failure to permit discovery of the returns did not render his

trial fundamentally unfair.

      The Federal Rules of Evidence also did not require the district court to

exclude the challenged parts of Calabrese’s testimony. Cabrera suggests that

Calabrese’s testimony violated Rule 404(b), which prohibits the use of evidence of

a prior bad act to prove a person’s bad character. Fed. R. Evid. 404(b)(1). The

government did not offer any of Calabrese’s testimony to prove Cabrera’s bad

character; it offered the testimony as evidence of Cabrera’s method for filing

returns and as evidence of the scope of his tax fraud scheme. Rule 404(b)(2)

makes clear that “prior bad act” evidence may be used for those purposes.

      Cabrera points out that Calabrese’s testimony must still clear the bar set by

Rule 403. But Rule 403 “is an extraordinary remedy which should be used

sparingly, since it permits the trial court to exclude concededly probative


                                         11
             Case: 14-10541     Date Filed: 12/30/2015   Page: 12 of 15


evidence.” United States v. Church, 955 F.2d 688, 700 (11th Cir. 1992). District

courts, moreover, have “considerable discretion” to admit or exclude evidence

under Rule 403. Lambert v. Fulton Cty., Ga., 253 F.3d 588, 596 (11th Cir. 2001).

Because Calabrese’s challenged testimony was relevant to the scope and nature of

the charged conspiracies, and because any prejudicial effect from the testimony

was negligible — since the testimony merely highlighted information already in

the spreadsheets — the district court did not abuse its discretion in admitting

Calabrese’s testimony over Cabrera’s Rule 403 objection.

                                         VI.

      That leaves Cabrera’s arguments that the district court miscalculated his

guidelines range. He contends first that the PSR failed to group the fraud and

money laundering counts as required by U.S.S.G. § 3D1.2. But the PSR did group

the fraud and money laundering counts together, just as Cabrera says it should

have. In explaining the steps behind its calculations, the PSR states that: “The

[fraud] counts are subsequently grouped together with the money laundering

counts under § 3D1.2(c), pursuant to § 2S1.1, comment. (n. 6), since [Cabrera] is

convicted of laundering funds and the underlying offense from which the

laundered funds were derived.” Cabrera got exactly the type of grouping to which

he says he was entitled.




                                         12
             Case: 14-10541     Date Filed: 12/30/2015    Page: 13 of 15


      Cabrera’s other guidelines argument is that the district court engaged in

impermissible double counting when, in calculating his guidelines range, it applied

a two-level enhancement because the fraud involved sophisticated means and then

another two-level enhancement because the money laundering was also

sophisticated. According to Cabrera, the “sophisticated” conduct accounted for in

each enhancement is the same, so that applying the enhancements together

punishes him twice for the same harm. That argument misconceives the nature of

the harm addressed by each enhancement. The sophisticated means enhancement

in § 2B1.1(b)(10)(C) of the guidelines is directed at the fraud itself and applies

when the fraudulent scheme, in its totality, is especially complex or intricate. See

U.S.S.G. § 2B1.1, cmt. 9(B); United States v. Barrington, 648 F.3d 1178, 1199

(11th Cir. 2011). This enhancement applied to Cabrera’s underlying crime, which

involved filing fraudulent returns using an obscure tax form, routing those forms

through stolen IP addresses, and stashing the proceeds in fake companies. The

sophisticated laundering enhancement in § 2S1.1(b)(3), by contrast, covers the

harm from laundering the proceeds of the fraud. See U.S.S.G. § 2S1.1, cmt. 5(A).

This enhancement addresses the sophistication of the money laundering Cabrera

undertook with Obando’s help, not the scheme from which the funds were derived.

Because the two enhancements recognize and punish different harms from

fundamentally different conduct, application of both enhancements is not


                                          13
             Case: 14-10541      Date Filed: 12/30/2015    Page: 14 of 15


“impermissible double counting,” which “occurs only when one part of the

Guidelines is applied to increase a defendant’s punishment on account of a kind of

harm that has already been fully accounted for by application of another part of the

Guidelines.” United States v. Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006).

      Also, we “presume that the Commission intended to apply separate guideline

sections cumulatively unless [we are] specifically directed otherwise.” United

States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995). The guidelines do not

forbid applying the sophisticated means and sophisticated laundering

enhancements together. Instead, they expressly contemplate that the enhancements

may be applied cumulatively so long as the conduct that is the basis for applying

the sophisticated laundering enhancement is not the only conduct that is the basis

for applying the sophisticated means enhancement. U.S.S.G. § 2S1.1(b)(3) & cmt.

5(B). The conduct — layering and the use of certain shell corporations — that is

the basis for applying the sophisticated laundering enhancement to Cabrera is not

the same as the conduct — including the use of an obscure IRS form and a

different set of shell corporations — that is the basis for applying the sophisticated

means enhancement to him. On these facts, the district court did not err in

applying both enhancements.

      Cabrera invites us to construe the guidelines in light of the rule of lenity, but

that rule has no role in this case. It applies only if the provision being construed is


                                          14
             Case: 14-10541      Date Filed: 12/30/2015    Page: 15 of 15


ambiguous after application of normal rules of statutory construction. United

States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005). There is no

ambiguity about how the guidelines apply here.

      For the first time in his reply brief, Cabrera raises two more arguments: (1)

that the district court should have applied the guideline for wire fraud, not money

laundering, to calculate his guidelines range; and (2) that the district court erred in

finding that his money laundering activities were sophisticated. Because he raised

neither argument in his opening brief, both arguments are forfeited. See United

States v. Noriega, 676 F.3d 1252, 1260 n.2 (11th Cir. 2012).

      AFFIRMED.




                                           15
