                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                              FEB 09, 2010
                                No. 09-10979                   JOHN LEY
                            Non-Argument Calendar            ACTING CLERK
                          ________________________

                      D. C. Docket No. 08-20058-CR-MGC

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

SORGA SUAREZ,
a.k.a. Lizette Solis,
a.k.a. Sorgalim Sin Barzaga,
a.k.a. Sorgalim Valladares,
a.k.a. Sorgalim Barzaga,
a.k.a. Lizette Valladares,

                                                            Defendant-Appellant.

                          ________________________

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

                               (February 9, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:

      Sorga Suarez appeals her conviction and 48-month sentence for income tax

evasion for calendar year 2001, in violation of 26 U.S.C. § 7201. Suarez argues

that: (1) the district court plainly erred by giving an inadequate limiting instruction

to the jury about the proper use of evidence of uncharged conduct; (2) the district

court clearly erred by finding that she evaded in excess of $400,000 in taxes and

was therefore subject to base offense level of 20 pursuant to U.S.S.G.

§§ 2T1.1(a)(1) and 2T4.1; (3) the district court clearly erred in imposing a two-

level sentencing increase under U.S.S.G. § 2T1.1(b)(1) for failing to report or

correctly identify the source of income exceeding $10,000 from criminal activity;

and (4) the district court clearly erred in imposing a two-level sentencing increase,

pursuant to U.S.S.G. § 2T1.1(b)(2), for the use of sophisticated means.          After

careful review, we affirm.

      First, the district court did not plainly err in instructing the jury about the

limited purpose for which it could use evidence that also referenced uncharged bad

acts by Suarez.     Ordinarily, we review evidentiary rulings for an abuse of

discretion.   United States v. Brannan, 562 F.3d 1300, 1307 (11th Cir. 2009).

However, where an objection or argument is raised for the first time on appeal we

review only for plain error. United States v. Moriarty, 429 F.3d 1012, 1018-19



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(11th Cir. 2005). “To establish plain error, a defendant must show there is (1)

error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1019. If all

three conditions are met, we may exercise our discretion to recognize the error,

“but only if the error seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. (quotation and alteration omitted). As Suarez concedes,

she did not object to the limiting instruction given to the jury with regard to its

consideration of evidence of her prior conduct, thus we will review her challenge

to that limiting instruction now only for plain error.

      Under Federal Rule of Evidence 404(b):

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident.

Fed. R. Evid. 404(b). To be admissible under Rule 404(b), “(1) the evidence must

be relevant to an issue other than the defendant’s character; (2) there must be

sufficient proof so that the factfinder could find that the defendant committed the

extrinsic act; and (3) the evidence must possess probative value that is not

substantially outweighed by undue prejudice.” United States v. Perez, 443 F.3d

772, 779 (11th Cir. 2006). The risk of undue prejudice may be mitigated by a

limiting instruction to the jury. United States v. Ramirez, 426 F.3d 1344, 1354



                                           3
(11th Cir. 2005).

      Suarez was charged with, and later convicted of evading paying income

taxes for 2001 in violation of 26 U.S.C. § 7201 by concealing and attempting to

conceal her personal assets and income in her company, Buinsess Etcetera, Inc.

(“BEI”), which operated a school that derived virtually all of its income from the

Department of Education’s (“DOE”) financial student aid program.                The

government, in proving its allegations, called Hector Quintero, a DOE analyst, to

testify that he reviewed BEI in August 2001, discovered that most of BEI’s

students were ineligible to receive the higher education loans or grants given to

them, and sent letters to BEI informing them that their participation in the DOE

program would not be renewed and that they were being audited. The district court

allowed the government to introduce on rebuttal copies of the letters the DOE sent

to BEI, despite their indication that Suarez misappropriated federal funds, after it

gave the jury the following limiting instruction:

      Ladies and gentlemen, the government, over the next few moments
      with this witness, is going to introduce several letters. These letters
      have indications of agency findings concerning issues that the
      defendant operate [sic]. These letters are being introduced to you not
      for the purpose of determining any wrong doing of this defendant for
      any other offense other than the offense charged in the indictment.
      You are not to use these letters to determine any wrong doing other
      than for the offense charged in the indictment.

Suarez now argues that limiting instruction was improper, because it was

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hopelessly confusing and allowed the jury to convict her solely on the allegations

of wrongdoing contained in the DOE letters in violation of Fed. R. Evid. 404(b).

      Suarez has not argued that the district court’s limiting instruction was

obviously erroneous, nor that it affected the outcome of the judicial proceedings

under the plain-error standard.     Moriarty, 429 F.3d at 1018-19.       That limiting

instruction informed the jury that it could only use the letters to determine whether

Suarez committed the charged offense, i.e. tax evasion, and not any uncharged

wrongdoing.    Contrary to Suarez’s suggestion, the instruction did not create a

situation in which the jury could convict Suarez of tax evasion based solely on

allegations that she misappropriated government funds.          Further, even if that

instruction was erroneous, it is undisputable that Suarez has not demonstrated that

her substantial rights were affected, or that the alleged error affected the fairness or

integrity of the proceeding.

      Second, the district court did not clearly err in calculating Suarez’s

Sentencing Guidelines range. With respect to guidelines issues, we review “purely

legal questions de novo, a district court’s factual findings for clear error, and, in

most cases, a district court’s application of the guidelines to the facts with due

deference.” United States v. Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir.

2004) (quotation omitted).



                                           5
      The district court did not clearly err in making the tax loss calculation.

Where tax evasion results in a tax loss to the government, a defendant’s base

offense level is determined under the tax table listed in U.S.S.G. § 2T4.1. U.S.S.G.

§ 2T1.1(a). For a tax loss of more than $400,000 but not more than $1 million, the

base offense level is 20. U.S.S.G. § 2T4.1(H). The guidelines define “tax loss” as

“the total amount of loss that was the object of the offense.”             U.S.S.G.

§ 2T1.1(c)(1).   In determining the amount of tax loss, the Guidelines direct a

sentencing court to “make a reasonable estimate based on the available facts.”

U.S.S.G. § 2T1.1, comment. (n.1).

      In the present case, Suarez was given a base offense level of 20, pursuant to

§ 2T4.1, based on a finding that the government suffered a tax loss of more than

$400,000.   Although there is some confusion regarding whether Suarez owed

$105,019, $105,919, or $106,991 in unpaid taxes for calendar year 1999, a base

offense level of 20 is warranted even under the lowest possible tax assessment.

See U.S.S.G. § 2T4.1(H). When coupled with agents Hammond and Andrews’s

calculation that Suarez’s owed $313,254 in unpaid taxes for 2001, a 1999 tax

liability of $105,019 yields a total tax loss of $418,273. Moreover, the district

court reasonably estimated the tax loss for 1999 based on the testimony of Agent

Hammond, who examined BEI’s 1999 tax return and calculated a gross corporate



                                         6
income for BEI. See U.S.S.G. § 2T1.1, comment. (n.1).

       Nor did the district court err in applying a source-of-income enhancement to

Suarez’s guidelines calculation. Pursuant to U.S.S.G. § 2T1.1(b)(1), a two-level

sentencing enhancement is warranted if a “defendant failed to report or to correctly

identify the source of income exceeding $10,000 in any year from criminal

activity.”   U.S.S.G. § 2T1.1(b)(1).    “Criminal activity” denotes “any conduct

constituting a criminal offense under federal, state, local, or foreign law.” U.S.S.G.

§ 2T1.1, comment. (n.3). The evidence presented at trial, which included both the

DOE letters and Agent Quintero’s testimony, showed that a DOE program review

of BEI found that Suarez had enrolled ineligible students for federal financial aid,

falsified documents to suggest student eligibility, failed to submit to required

closeout audits for three consecutive years, and had received approximately $7

million in federal funds.    Agent Hammond also testified that in 2001, Suarez

transferred over $1 million in federal grant and loan funds, which were supposed to

be distributed to qualified students for living expenses, into her personal bank

accounts and misclassified the transactions as business expenses or accounts

receivable. Because the evidence presented at trial indicated that Suarez derived

more than $10,000 in 2001 from misappropriating government funds and failed to

report the source of the income, the district court did not clearly err in imposing a



                                          7
two-level sentencing increase under § 2T1.1(b)(1).

      We also reject Suarez’s argument, raised for the first time on appeal, that the

source-of-income enhancement violates her Fifth Amendment right against self-

incrimination.   An error cannot be considered “plain” unless it is “clear under

current law,” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000)

(quotation omitted), and there is no law in the Supreme Court or this Court

resolving this issue. See also United States v. Roush, 466 F.3d 380, 388 (5th Cir.

2006) (rejecting a Fifth Amendment challenge to the sentencing provision because

the “point of the enhancement . . . is to further deterrence, particularly in light of

the chronic under-reporting of criminally-derived income” and the “two-level

increase does not itself force an individual to disclose the income, but merely takes

into account the source of income when penalizing non-disclosure”).

      Finally, the district court did not clearly err in applying a sophisticated

means enhancement to Suarez’s guidelines calculation. The sentencing guidelines

provide for a two-level increase in a defendant’s base offense level if the offense

involved “sophisticated means.”       U.S.S.G. § 2T1.1(b)(2).      The commentary

describes “sophisticated means” as “especially complex or especially intricate

offense conduct pertaining to the execution or concealment of an offense,”

including “[c]onduct such as hiding assets or transactions, or both, through the use



                                          8
of fictitious entities, corporate shells, or offshore financial accounts.” U.S.S.G. §

2T1.1(b), comment. (n.4).

       We have affirmed the application of a sophisticated means enhancement

where the defendant used multiple bank accounts or other financial instruments to

conceal income and cash expenditures. See United States v. Campbell, 491 F.3d

1306, 1315-16 (11th Cir. 2007) (affirming sentence enhancement where the

defendant utilized campaign accounts and credit cards registered in other people’s

names to conceal cash expenditures in an attempt to impede discovery of his tax

fraud).   Recently, in United States v. Clarke, we upheld the district court’s

determination that the defendant used sophisticated means to conceal the true

extent of his income by depositing his salary into accounts that were not registered

in his own name and instructing his employer to make payments out of these

accounts directly to his personal creditors and insurance carriers. 562 F.3d 1158,

1166 (11th Cir. 2009). In upholding the district court’s finding, this Court held

that there was “no material difference between concealing income and transactions

through the use of third-party accounts . . . and using a corporate shell or a

fictitious entity to hide assets.” Id.

       Because Suarez utilized multiple bank accounts under multiple names and

misclassified corporate documents to obscure the true nature and extent of her



                                          9
income and expenditures, the district court did not clearly err in imposing a two-

level enhancement for using sophisticated means to conceal her tax evasion.



      AFFIRMED.




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