          Case: 14-12689   Date Filed: 06/27/2017    Page: 1 of 7


                                                          [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-12689
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:13-cr-00040-MEF-SRW-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

BRYANT ALLEN THOMPSON,
QUINCY SINTELL WALTON,

                                              Defendants - Appellants.

                     ________________________

              Appeals from the United States District Court
                  for the Middle District of Alabama
                     ________________________

                            (June 27, 2017)
                Case: 14-12689        Date Filed: 06/27/2017       Page: 2 of 7


Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:

       This is a multi-appellant appeal. First, Quincy Walton appeals his

convictions and sentences for conspiracy to defraud the United States, 18 U.S.C.

§ 371, and aggravated identity theft, 18 U.S.C. § 1028A(a)(1) and (c)(1). Walton

contends the jury verdicts were so inconsistent that no reasonable jury could have

found him guilty. He also challenges his 84-month sentence, asserting it was

unreasonable.

       Second, Bryant Thompson appeals his 120-month total sentence imposed

after a jury found him guilty of one count of conspiracy to defraud the government

pursuant to 18 U.S.C. § 371, seven counts of wire fraud under 18 U.S.C. § 1343,

and seven counts of aggravated identity theft pursuant to 18 U.S.C. § 1028A(a)(1)

and (c)(1). Thompson argues his sentence was unreasonable based on an allegedly

unwarranted disparity with a codefendant.

       After review,1 we affirm.




       1
          We review a defendant’s challenge to the sufficiency of the evidence de novo. United
States v. Klopf, 423 F.3d 128, 1236 (11th Cir. 2005). The evidence is sufficient to support a
conviction if, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Id. With respect to Guidelines issues, this Court reviews factual findings for clear error.
United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). We review the reasonableness
of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
                                                2
               Case: 14-12689     Date Filed: 06/27/2017     Page: 3 of 7


                                   I. DISCUSSION

A. Walton

      1. Convictions

      The record shows there is sufficient evidence to convict Walton on both

counts. First, there is sufficient evidence to support the jury’s verdict that Walton

conspired to defraud the Government. The Government needed to show that (1)

Walton and Thompson agreed to impede the functions of the IRS; (2) Walton

knowingly and voluntarily participated in that agreement; and (3) either Thompson

or Walton committed an act in furtherance of the agreement. 18 U.S.C. § 371;

United States v. Hough, 803 F.3d 1181, 1187 (11th Cir. 2015). A jury could infer

that Walton and Thompson had an agreement in which Walton knowingly

participated based on evidence presented at trial, including: their longstanding

relationship as former co-workers and current acquaintances; the common design

of their conduct, including submitting tax returns from the IP addresses connected

to them and using inmate identities and similar addresses in Prattville, Alabama on

the returns to receive refunds; and testimony to the effect that Walton admitted that

he received the inmates’ identities from Thompson. See United States v. Schwartz,

541 F.3d 1331, 1361 (11th Cir. 2008) (“An agreement to conspire may be proved

by circumstantial as well as direct evidence . . . and may be inferred from the

relationship of the parties, their overt acts and concert of action, and the totality of


                                            3
              Case: 14-12689     Date Filed: 06/27/2017    Page: 4 of 7


their conduct.” (quotation omitted)); Hough, 803 F.3d at 1187 (stating that

circumstantial evidence can prove a conspiracy if it can support a “reasonable

inference” that conspirators had “a common design with unity of purpose to

impede the IRS.” (quotation omitted)). Furthermore, there was evidence that

Walton cashed the fraudulent refund checks, constituting an act in furtherance of

the conspiracy. See id.

      Second, there is sufficient evidence to convict Walton of aggravated identity

theft. The Government had to prove that Walton knowingly transferred, possessed,

or used, without lawful authority, the name and forged signature of another during

the commission of a theft of government money. 18 U.S.C. §§ 1028A(a)(1),

(c)(1); 1028(d)(7); United States v. Wilson, 788 F.3d 1298, 1310 (11th Cir. 2015)

(holding that the use of a name and forged signature qualifies as a “means of

identification” under § 1028A). The Government carried its burden by presenting,

inter alia, evidence that Walton cashed a Treasury check in the name of a deceased

inmate. Furthermore, Walton’s argument that the conviction cannot stand because

the jury verdict was inconsistent is contradicted by our precedent. We have held

that “as long as the guilty verdict is supported by sufficient evidence, it must stand,

even in the face of an inconsistent verdict on another count.” United States v.

Mitchell, 146 F.3d 1338, 1345 (11th Cir. 1998).




                                           4
              Case: 14-12689     Date Filed: 06/27/2017   Page: 5 of 7


      2. Sentence

      Walton bears the burden of showing his sentence was unreasonable in light

of the record and the § 3553(a) factors. United States v. Pugh, 515 F.3d 1179,

1189 (11th Cir. 2008). He challenges the district court’s finding that he

participated in a fraud, the intended loss of which was between $400,000 and

$1,000,000. See U.S.S.G. § 2B1.1 (2014). However, the district court did not

clearly err in finding, based on the testimony of an IRS special agent at the

sentencing hearing, that there were over one hundred additional returns filed from

IP addresses connected to Walton, and that the total intended losses was within the

range above. See Rothenberg, 610 F.3d at 624; United States v. Watts, 519 U.S.

148, 157 (1997) (“A jury’s verdict of acquittal does not prevent the sentencing

court from considering conduct underlying the acquitted charge, so long as that

conduct has been proved by a preponderance of the evidence.”).

      Walton does not identify any other procedural or substantive defects in his

sentence, and we find none. See Pugh, 515 F.3d at 1189. The district court

properly calculated the sentence, appropriately discussed and weighed the

§ 3553(a) factors, and imposed a within-Guidelines sentence that was sufficient but

not greater than necessary. See Gall, 552 U.S. at 51.




                                          5
              Case: 14-12689     Date Filed: 06/27/2017   Page: 6 of 7


B. Thompson

      Thompson also challenges the reasonableness of his sentence. His sole

contention is that the district court created an unwarranted sentencing disparity

when it sentenced him to 120 months’ imprisonment, while his cousin and

codefendant Corey Thompson (Corey), who is not a party to this appeal, received a

sentence of only 30 months. Thompson’s argument fails, however, because he and

Corey are not similarly situated. See United States v. Williams, 526 F.3d 1312,

1323 (11th Cir. 2008) (noting that concerns about sentencing disparities are not

implicated where the appellant and a codefendant are not similarly situated); see

also United States v. Regueiro, 240 F.3d 1321, 1325–26 (11th Cir. 2001)

(“Disparity between the sentences imposed on codefendants is generally not an

appropriate basis for relief on appeal.”). Corey immediately accepted

responsibility, pled guilty, and assisted the Government at his codefendants’ trials.

Thompson, by contrast, forced the Government to prove his guilt at trial. See

United States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009) (“[T]here is no

unwarranted disparity when a cooperating defendant pleads guilty and receives a

lesser sentence than a defendant who proceeds to trial.”). Thompson’s appeal is

premised solely on his disparity argument, which, as stated above, fails. As such,

he has not borne the burden of showing his sentence was unreasonable in any other

respect. See Pugh, 515 F.3d at 1189. We conclude the district court did not abuse


                                          6
                Case: 14-12689    Date Filed: 06/27/2017   Page: 7 of 7


its discretion in handing down his within-Guidelines sentence. See Gall, 552 U.S.

at 51.

                                  II. CONCLUSION

         For the reasons stated above, Walton’s convictions and both appellants’

sentences are affirmed.

         AFFIRMED.




                                           7
