Case: 18-10520 Date Filed: 08/29/2019 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10520 ________________________
D.C. Docket No. 1:14-cr-00192-ODE-AJB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREDERICK JENKINS, WILLIE JENKINS,
Defendants - Appellants.
________________________
Appeals from the United States District Court for the Northern District of Georgia ________________________
(August 29, 2019)
Before MARTIN and ROSENBAUM, Circuit Judges, and MARTINEZ, * District Judge.
* Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation. Case: 18-10520 Date Filed: 08/29/2019 Page: 2 of 19
PER CURIAM:
Defendants-Appellants brothers Frederick and Willie Jenkins owned several
tax-preparation businesses. After trial, a jury found them guilty of multiple counts
each of preparing and presenting false tax returns in violation of 26 U.S.C. § 7206(2)
and one count each of conspiracy to prepare and present false tax returns in violation
of 18 U.S.C. § 371. The Government’s theory at trial was that the brothers falsified
information on the Schedule C of their customers’ returns without the taxpayers’
knowledge. At sentencing, the district court calculated the total tax revenue lost due
to the Jenkins brothers’ crimes based on all of the tax returns that the brothers’
business filed in the same period that shared certain characteristics with the
particular returns that the Government had proven fraudulent beyond a reasonable
doubt at trial.
A panel of this Court vacated the Jenkins brothers’ original sentences because
it found that the Government had not presented sufficient evidence at sentencing to
support the court’s tax-loss calculation. On remand, the district court heard new
evidence about the extent of the tax loss caused as a result of the Jenkins brothers’
conspiracy. The court made a new tax-loss calculation based on that new evidence
and used the new calculation in imposing new sentences.
On appeal, the Jenkins brothers argue that the district court improperly went
beyond this Court’s mandate when it heard new evidence, that the Government’s
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new evidence was unreliable, that the Government’s statistical analysis was
inaccurate, and that the Jenkins brothers’ sentences were substantively unreasonable
because the district court allegedly relied in part on Appellants’ statements about
“political stuff” when imposing sentence. After careful review, we affirm.
I.
In 2015, a grand jury returned an indictment charging Willie Jenkins with 12
counts of preparing and presenting false returns in violation of 26 U.S.C. § 7206(2).
The indictment also charged Fred Jenkins with six counts of that crime. In addition,
the indictment charged both defendants with one count each of conspiring to commit
those offenses in violation of 18 U.S.C. § 371.
The Jenkins brothers proceeded to trial. During trial, the Government dropped
two of the preparing-and-presenting-false-tax-returns charges against Willie
Jenkins. After trial, a jury found both Jenkins brothers guilty of conspiracy: Fred
Jenkins guilty of ten counts of preparing and presenting a false return, and Willie
Jenkins guilty of six counts of preparing and presenting a false return.
At the Jenkins brothers’ original sentencing, the Government sought to prove
that the defendants’ crimes had caused $14 million of lost tax revenue. The
prosecution reached that amount by examining 10% of the returns that the Jenkins
brothers’ business filed that included Schedule Cs, adding up the reported business
losses, multiplying that number by 10 to arrive at an estimated total number of
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business losses for all the returns, and then, following the Sentencing Guidelines’
instructions for calculating lost tax revenue, taking 28% of that total. United States
v. Jenkins, 701 F. App’x 897, 901 (11th Cir. 2017). The Government contended that
the total business losses reported on those returns could be treated as fraudulent
because the Jenkins brothers’ business prepared all of them during the same period
and because they reported similar types of losses from advertising and office
expenses. Id. The court accepted the Government’s tax-loss calculation and, partly
on the basis of that calculation, sentenced Fred Jenkins to an aggregate prison term
of 78 months and Willie Jenkins to an aggregate prison term of 75 months.
In their first appeal, the Jenkins brothers made arguments attacking the
validity of their convictions as well as their sentences. We affirmed Appellants’
convictions. Jenkins, 701 F. App’x at 899-900. However, we reversed the Jenkins
brothers’ sentences because the tax-loss calculation at the first sentencing
proceeding was not supported by the preponderance of the evidence. We held that
the shared characteristics between the returns that the Government proved fraudulent
at trial and the returns presented at sentencing, by themselves, did not establish that
the Jenkins brothers had willfully included fraudulent information in all of the
sentencing returns. Id. at 902. A panel of this Court “vacate[d] their sentences,”
concluding their opinion with the following language: “AFFIRMED IN PART,
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VACATED IN PART, AND REMANDED FOR RESENTENCING.” Id. at 902-
903.
Shortly after we issued our opinion, Willie Jenkins sought to expedite
issuance of the Court’s mandate. As part of its response to that motion, the
Government requested that the Court “clarify the scope of the remand” to expressly
provide that it would be permitted to present new evidence on remand. Without
elaborating, we granted Willie’s motion to expedite the issuance of the mandate and
denied the Government’s request to clarify the Court’s mandate.
On remand, the Government requested that the district court allow it to present
new evidence. In particular, the Government told the court that it planned to reach
out to the taxpayers listed on the randomly selected returns presented at the first
sentencing proceeding to determine whether each taxpayer in fact incurred the
business expenses listed on the return. If the taxpayer did not own the listed business
or incur the reported expenses, the Government said, testimony to that effect would
prove that the return was fraudulent and would cure the defect identified on appeal.
The Jenkins brothers opposed the Government’s position and argued that the district
court was not authorized to hear new evidence on remand unless this Court expressly
allowed it to do so.
The district court opined that it was “unusual” for the court to hear new
evidence at a resentencing hearing and that the Government generally got only “one
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bite at the apple.” But the court granted the Government’s request because “the
defendants carried out a massive fraud on our government” and because their
“culpability . . . is so high.”
At the resentencing hearing, the Government called IRS Special Agent
Richard Thomas. He testified that investigators took a random sample of 10% of
the returns that included a Schedule C, that were filed by the Jenkins brothers’
company during the relevant period. That sample included 283 returns. For those,
Thomas and other government agents attempted to contact all 228 taxpayers whose
returns had Schedule Cs that reported a loss. Ultimately, he said, agents were able
to contact 108 of the taxpayers. Of those, 34 responded that they did not own the
business described on the Schedule C on their returns, did not have the reported
business expenses, and had not informed defendants’ business that they had those
expenses. Those facts indicated to Thomas that the returns associated with those
taxpayers were fraudulent. In total, those taxpayers had used the Jenkins brothers’
company to file 37 returns. The Government added that two of the returns in the
random sample had been the subject of substantive counts of preparing and
presenting false returns at trial, upon which the defendants had been convicted,
which brought the total number of proven-fraudulent returns in the random sample
to 39.
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Based on Agent Thomas’s testimony, the Government argued that the Jenkins
brothers were accountable for $2,421,347 of lost tax revenue. The Government
started its calculation by dividing the total number of proven-fraudulent returns in
the random sample (39) by the number of returns reporting business losses in the
random sample (228) for a “fraud rate” of 17.1%. Then, it calculated the tax-loss
amount from the reported business losses by adding up the losses from the random
sample, multiplying that number by ten, and taking 28% of that total. That
calculation resulted in a tax loss attributable to reported business losses of
$14,243,219. Finally, to determine the amount of the tax loss attributable to the
Jenkins brothers’ fraud, the Government multiplied the tax-loss amount by the fraud
rate (17.1%), for a tax loss of $2,421,347.
The Government also presented an alternative calculation in which it divided
the total number of proven-fraudulent returns in the random sample (39) by all 283
of the tax returns from the random sample, including the 55 returns that reported a
profitable business, and then conducted the remaining calculations. That calculation
resulted in $1,951,321 of tax loss attributable to the Jenkins brothers’ fraud,
coinciding with the same base offense level.
The defense called Jeffrey Martin, an expert in statistics. Martin agreed that
the agents’ initial sample of 283 tax returns was random but said that removing the
55 returns that reported a profitable business made the sample not random. And
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since the sample was not random, Martin said, the Government’s extrapolated loss
calculation was not reliable. Using only the evidence presented at trial, Martin
calculated the tax loss attributable to the Jenkins brothers as roughly $40,000.
The defense also called Joseph Robuck, an investigator. Robuck interviewed
58 of the taxpayers, including 26 of the taxpayers whom the Government identified
as having fraudulent tax returns. Robuck’s employee attempted to contact Kesert
Mullings, whose return the Government had identified as reporting fraudulent
business expenses. The employee reported that the agents had actually spoken with
Mullings’s father, not the taxpayer himself. But when Robuck located and identified
the correct Kesert Mullings, Mullings confirmed that he did not have any business
expenses for the tax year in question. Robuck’s employee also contacted Misty
Davis, who the Government said stated that she had no business expenses for the
year of the tax return in question. According to Robuck, Davis said that she had told
the IRS that she had not personally done her taxes but that her former husband had
done the taxes. When Robuck interviewed Davis’s former husband, he confirmed
that Davis had not had business expenses. Robuck also criticized the agents’
investigation into the returns that the Government ultimately concluded had not been
fraudulent. Finally, Robuck opined that the manner in which the IRS conducted its
investigation had been inherently unreliable because the taxpayers were not
sophisticated and because the agents spoke with them only briefly by phone.
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Overall, although Robuck said that he had found “inconsistencies” in the
Government’s investigation, he conceded he had not found “errors.”
Finally, the defense called Art McGovern, one of Robuck’s employees.
Referring to the Government’s spreadsheet showing all 5,011 of the tax returns filed
by defendants’ company during the relevant years, McGovern said that the electronic
filing information reported that Willie Jenkins was not listed as the official preparer
on any of them. Fred Jenkins was listed as the preparer of 2,120 of them, or 42% of
the total. McGovern then attested that the total amount of business losses reported
on returns that were proven fraudulent and that listed Fred as the preparer was
$64,166.
After hearing the parties’ arguments, the district court addressed the tax-loss
calculation issue. In response to defendants’ argument that the court should not
consider any of the new evidence, the court concluded that it was “reasonable for
[it] to look at the new evidence that both sides have put in in determining what the
correct sentence is.” The court also rejected the Jenkins brothers’ argument that the
court should not have considered the returns that did not list either of them as the
official preparer. The court recalled that, at trial, it had heard evidence that the
person listed as the preparer on the returns was often someone other than one of the
defendants, even when one of the defendants had in fact prepared the return. Based
on that evidence, the court concluded that “Fred and Willie were both doing the same
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thing,” preparing fraudulent tax returns, and had also “conspired with each other” to
carry out their scheme. And, the court said, the trial evidence showed that their
methods “were not idiosyncratic” but contained a “pattern and practice of conduct,”
which caused it to infer that “this same type of fraud” was not “confined” to the
returns described at trial.
The court next addressed the sufficiency of the Government’s evidence to
prove the extent of the tax loss caused by the Jenkins brothers’ fraud. It found that
the discrepancies identified by the defense did not render the agents’ results
unreliable. Rather, the court credited the IRS agent’s testimony and concluded that
the Government had demonstrated that 39 of the returns were fraudulent “through
and through.” Dividing that number by 228, which did not include the 55 returns in
the random sample that had reported a profitable business, the court agreed with the
Government that the fraud rate was 17.1% and extrapolated that rate to calculate a
total tax loss of $2,421,347.
Taking that calculation into account and imposing a two-level increase for
being in the business of preparing tax returns, the court concluded that defendants
had an offense level of 24 and a guidelines range of 51 to 63 months.
After hearing the parties’ arguments, the court sentenced Fred Jenkins to an
aggregate term of 63 months in prison and Willie Jenkins to an aggregate sentence
of 60 months. The court said that it chose those sentences because of the Jenkins
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brothers’ “very serious” and “highly intentional” conduct. The court also pointed to
the “political stuff” that the Jenkins brothers discussed with their clients that was
“meant to demean the government.” The court further explained what it meant when
it referred to “political stuff”:
During the trial and sentencing hearing, the defendants gave indications of having bought into the sovereign citizen rhetoric. The business about you have to file a claim against my estate to have any type of legal claim which is, of course, all totally bogus, and I’m convinced they knew it was bogus, and to me when I hear that type of language coming from a defendant, it just screams of fraud. The only people who say that kind of stuff are people who are out to defraud these days. Defense counsel objected to the Government’s presentation of additional evidence,
the court’s calculation of the recommended guidelines range, and the court’s
consideration of what the Jenkins brothers characterize as their “political
statements.”
This appeal followed.
II.
We review de novo a district court’s compliance with our mandate in a
previous appeal. United States v. Crape, 603 F.3d 1237, 1241 (11th Cir. 2010). We
also review de novo a sentencing court’s application of the Sentencing Guidelines
and accept the court’s factual findings unless they are clearly erroneous, reversing
only if we are left with a definite and firm conviction that a mistake has been
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committed. United States v. Tejas, 868 F.3d 1242, 1244 (11th Cir. 2017). Where
the sentencing court’s findings of fact are erroneous, the error is not reversible where
the court would have imposed the same sentence had the court considered the proper
facts. See United States v. Kendrick, 22 F.3d 1066, 1069-70 (11th Cir. 1994). If an
error did not affect the guidelines range, it is harmless. United States v. Bradley,
644 F.3d 1213, 1292 (11th Cir. 2011).
We review the procedural and substantive reasonableness of a sentence for an
abuse of discretion, United States v. Alberts, 859 F.3d 979, 985 (11th Cir. 2017), but
review de novo whether the sentencing court considered an improper factor. United
States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008).
III.
A.
As a threshold issue, the Jenkins brothers argue that the district court abused
its discretion when it allowed the Government to present new evidence on remand.
We disagree.
On remand, a district court is bound by the findings of fact and conclusions
of law made by an appellate court in a prior appeal in the same case. United States
v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). When “acting under an appellate
court’s mandate, a district court ‘cannot vary it, or examine it for any other purpose
than execution; or give any other or further relief; or review it, even for apparent
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error, upon a matter decided on appeal; or intermeddle with it, further than to settle
so much as has been remanded.’” Id. at 830 (quoting United States v. Tamayo, 80
F.3d 1514, 1520 (11th Cir. 1996)).
In general, we view a criminal sentence as “a package of sanctions that the
district court utilizes to effectuate its sentencing intent consistent with the
Sentencing Guidelines.” United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).
In this Circuit, “as a general matter, . . . when a sentence is remanded on appeal, the
sentencing process commences again de novo.” United States v. Grant, 397 F.3d
1330, 1336 (11th Cir. 2005). So when this Court vacates a sentence and remands a
case to the district court for resentencing, this Court’s mandate vacates the sentence
in its entirety. Stinson, 97 F.3d at 469.
However, in appropriate cases we have narrowed our mandate to prohibit the
Government from introducing new evidence at resentencing where the Government
was aware of a defense objection to its sentencing evidence and had the opportunity
to present additional evidence in response to that objection. See, e.g., United States
v. Wright, 862 F.3d 1265, 1276 (11th Cir. 2017); United States v. Washington, 714
F.3d 1358, 1362 (11th Cir. 2013); United States v. Canty, 570 F.3d 1251, 1257 (11th
Cir. 2009). In those cases, we expressly mandated that the Government was not
allowed to present additional evidence at resentencing.
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In resolving the Jenkins brothers’ first appeal, we did not narrow our mandate.
Instead, we vacated the Jenkins brothers’ sentences in their entirety and remanded
for resentencing. See Jenkins, 701 F. App’x at 902-903. The district court therefore
acted within its discretion when it began resentencing “de novo” and allowed the
Government to present new evidence. Grant, 397 F.3d at 1336.
The Jenkins brothers’ arguments on appeal to the contrary are not persuasive.
They say that their motion to expedite the issuance of this Court’s mandate was
premised on the Government’s not being permitted to present new evidence, and that
the district court therefore violated this Court’s “implied” holding. But a district
court is bound by an implied holding only when our decision resolved that issue “by
necessary implication.” Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 1985)
(emphasis added). Our decision to expedite issuance of the mandate in the earlier
appeal was not predicated on a decision to narrow our mandate. The Jenkins brothers
also argue that the sentencing court applied the wrong legal standard when it decided
to hear new evidence, but its decision to do so was well within its wide discretion to
hear evidence at sentencing.
B.
Next, the Jenkins brothers contend that the sentencing court’s tax-loss
calculation was error because the Government’s evidence was unreliable and
because the court’s statistical extrapolation of the total lost tax revenue was flawed.
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We agree only that the district court, in extrapolating the amount of total tax loss,
should not have excluded from the calculation the 55 returns that reported a
profitable business. Nevertheless, correcting that error results in the same
recommended guidelines range and does not otherwise affect the sentencing court’s
bases for the Jenkins brothers’ sentences. So while the tax-loss calculation was
flawed in part, the error was harmless.
Where a defendant challenges one of the Government’s factual bases for that
defendant’s sentence, the Government bears the burden of proving that fact by a
preponderance of evidence, and the Government must satisfy its burden with specific
and reliable evidence. United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009).
District courts may make loss determinations based on evidence at trial, in addition
to evidence at a sentencing hearing. United States v. Bradley, 644 F.3d 1213, 1290
(11th Cir. 2011). Nor must a sentencing court “constrain itself to absolute figures”;
instead, it may “rely on ‘specific circumstantial evidence’ to estimate the amount of
loss.” Id. (quoting United States v. Willis, 560 F.3d 1246, 1251 (11th Cir. 2009)).
But while a court can rely on estimates, it “‘must not speculate concerning the
existence of a fact which would permit a more severe sentence under the
guidelines.’” Id. (quoting United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir.
1997)). As we apply these rules, we keep in mind that §1B1.3(a)(1)(B) of the
Sentencing Guidelines makes clear that a defendant is responsible for “all acts and
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omissions of others that were (i) within the scope of [a] jointly undertaken criminal
activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable
in connection with that criminal activity.” United States v. Presendieu, 880 F.3d
1228, 1245 (11th Cir. 2018); see also United States v. McCrimmon, 362 F.3d 725,
731 (11th Cir. 2004). Finally, “‘[d]istrict courts are in a unique position to evaluate
the evidence relevant to loss determination,’” so we “must give their determinations
‘appropriate deference.’” United States v. Whitman, 887 F.3d 1240, 1248 (11th Cir.
2018) (quoting United States v. Moran, 778 F.3d 942, 973 (11th Cir. 2015)).
When we apply these standards, we must conclude that the sentencing court’s
tax-loss-amount calculation is no cause for reversal. For example, it was not clear
error to decline to rely on the evidence that neither Fred nor Willie Jenkins were
listed as the official “preparer” on many of the tax returns when the court held both
Jenkins brothers accountable for losses attributable to returns where they were not
identified as the preparer. As the sentencing court observed, evidence at trial proved
that the person listed as the preparer on a given return was not always the person
who in fact prepared the return. Indeed, the jury necessarily rejected the Jenkins
brothers’ argument because it found both defendants guilty of substantive counts
where they were not listed as the official preparer on the return.
The district court also did not clearly err when it credited the Government’s
witnesses, even though the defense witness had identified inconsistencies in the
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agents’ investigation. The defense investigator noted inconsistencies with the
Government’s investigation into returns associated with taxpayers Davis and
Mullings, but the investigator also confirmed that those taxpayers had not incurred
the business expenses that were reported on their returns. Thus, even accepting that
the defense investigators identified inconsistencies in the Government’s
investigation, the sentencing court was correct to conclude that the returns associated
with those taxpayers had been fraudulent. The rest of the inconsistencies the
investigator observed concerned tax returns that the Government did not identify as
having been fraudulent, so they could not have had any effect on the tax-loss
calculation. And to the extent the Jenkins brothers assert those discrepancies were
so troubling that all of the Government’s evidence was unreliable, the district court
did not clearly err by crediting the Government’s witness.
Finally, the Jenkins brothers contend that the Government’s extrapolation was
statistically unreliable because it ignored 55 tax returns that reported profitable
businesses. We agree, but that error was harmless.
As the Jenkins brothers’ statistics expert testified, the Government’s tax-loss
calculation started with a random sample of 10% of the returns. But when the
Government disregarded 55 of those returns, the sample became biased in favor of
fraudulent returns. Taking those returns into account, however, the tax loss
attributable to the Jenkins brothers’ fraud is $1,951,321, which falls within the same
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guidelines range as the district court’s tax-loss finding. See U.S.S.G. §2T4.1. The
tax-loss amount did not otherwise affect the district court’s decision to impose
sentences on the high end of the guidelines range, so the court’s error in calculating
the tax-loss amount would not have resulted in different sentences and was therefore
harmless. See Bradley, 644 F.3d at 1292; Kendrick, 22 F.3d at 1069-70.
C.
Finally, the Jenkins brothers argue that their sentences are substantively
unreasonable because, in pronouncing their sentences, the court mentioned that they
had made certain “political statements” to their clients that were meant to “demean
the government,” which Appellants say was an improper consideration. We disagree
because, in context, the court’s consideration of the Jenkins brothers’ alleged
“political statements” referred to the nature and circumstances of the offense, not to
the Jenkins brothers’ exercise of their First Amendment rights.
The First Amendment protects an individual’s speech and right to join groups
and associate with others holding similar beliefs, but it “does not erect a per se
barrier to the admission of evidence concerning one’s beliefs and associations at
sentencing simply because those beliefs and associations are protected by the First
Amendment.” Dawson v. Delaware, 503 U.S. 159, 164-65 (1992). Rather, as we
have previously held, the First Amendment “only protects ‘a defendant’s abstract
beliefs at a sentencing hearing when those beliefs have no bearing on the issue being
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tried.’” United States v. Serrapio, 754 F.3d 1312, 1322 (11th Cir. 2014) (quoting
Dawson, 503 U.S. at 168).
Here, the district court properly considered the Jenkins brothers’ sovereign-
citizen rhetoric because it had a bearing on the nature, circumstances, and
seriousness of the offense. See 18 U.S.C. § 3553(a). The court did not consider the
Jenkins brothers’ apparent sovereign citizen beliefs on their own. Quite the opposite.
The court actually observed that the Jenkins brothers “knew” that the sovereign-
citizen theories were “bogus” and opined that the only reason they espoused those
beliefs was because they were “out to defraud.” The district court was permitted to
account for this in determining its sentence.
IV.
In sum, we affirm Appellants’ sentences.
AFFIRMED.