FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 25, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12814

Non-Argument Calendar

________________________

D. C. Docket No. 08-00132-CR-02-WSD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACQUELINE ANN DEMER,

a.k.a. Jessica Dalton,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(March 25, 2010)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Jacqueline Ann Demer appeals from her total 63-month sentence for

conspiring to defraud the United States by impeding the collection of revenue, in
violation of 18 U.S.C. § 371 (Count One), and passing fictitious instruments, in

violation of 18 U.S.C. § 514(a)(2) (Counts Six to Ten). On appeal, Demer argues

that: (1) the district court erred in holding her accountable, in determining her

offense level at sentencing, for the total loss amount stemming from a coconspirator’s tax liability for the tax years of 1996 to 2003; (2) the district court

clearly erred in failing to grant her a minor-role reduction; (3) the district court

clearly erred in overruling her objection to a two-level enhancement for

encouraging others, besides the co-conspirator, to violate the internal revenue laws

or to impede the collection of revenue; and (4) the district court plainly erred in

holding her liable for restitution in the amount of the co-conspirator’s tax liability

from the tax years of 2001 to 2003. After careful review, we affirm.

We review the sentencing court’s application of the Sentencing Guidelines

to the facts de novo, and the court’s factual findings for clear error. United States

v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005). We review for clear error a district

court’s factual determination of a defendant’s role in the offense under U.S.S.G. §

3B1.2(b), and of a defendant’s intention to encourage others under U.S.S.G. §

2T1.9(b)(2). United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en

banc); see also United States v. Sileven, 985 F.2d 962, 970 (8th Cir. 1993). We

review the district court’s order of restitution de novo. United States v. Dickerson,

2
370 F.3d 1330, 1335 (11th Cir. 2004). Nevertheless, in this case, we review

Demer’s restitution argument on appeal for plain error because she failed to raise

the issue below. See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005).

Plain error exists if there was (1) error; (2) that is “clear or obvious, rather than

subject to reasonable dispute”; (3) that affects defendant’s substantial rights in that

it would affect the outcome of the trial; and (4) if the first three prongs are

satisfied, we have the discretion to remedy the error if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Puckett v. United

States, 129 S.Ct. 1423, 1429 (2009).

First, we are unpersuaded by Demer’s claim that the district court erred in

holding her accountable, in determining her offense level at sentencing, for the

total loss amount stemming from a co-conspirator’s tax liability for the tax years of

1996 to 2003, because she only entered the conspiracy in January 2002. Under

U.S.S.G. § 1B1.3, relevant conduct that should be taken into account to calculate a

defendant’s base offense level includes, among other things, “all acts and

omissions committed” by the defendant, “all reasonably foreseeable acts and

omissions of others in furtherance of . . . jointly undertaken criminal activity” that

“occurred during the commission of the offense of conviction,” and all harm that

resulted from or was the object of such acts and omissions. U.S.S.G. § 1B1.3(a).

3
We have held that, according to U.S.S.G. § 1B1.3’s commentary, a defendant

cannot be held accountable for conduct that occurred before her entry into the joint

criminal undertaking, even if she knows of that conduct. United States v. Hunter,

323 F.3d 1314, 1320 (11th Cir. 2003).

As applied here, the district court did not err in finding that Demer was

accountable for the co-conspirator’s tax liability predating her entry into the

conspiracy from 1996 to 2000. As the record shows, Demer committed the act of

printing five fictitious bonds from her computer in 2003 and mailing them as

payment in full to satisfy co-conspirator Jerry Lahr’s tax liability from 1996 to

2000, in the total amount of approximately $800,000. The intended harm of

Demer’s act was to fraudulently discharge Lahr’s tax liability from 1996 and 2000,

and, in turn, deprive the IRS of approximately $800,000. Thus, the district court

properly included Lahr’s tax liability from 1996 to 2000 in the total loss amount

attributable to Demer, based on her own conduct of mailing five fictitious bonds to

discharge the co-conspirator’s past liability and the financial harm that she

intended to cause. Further, to the extent Demer argues for the first time on appeal

1

 Moreover, Demer’s reliance on United States v. Word, 129 F.3d 1209 (11th 1997), is 1

misplaced. In Word, we held that the defendant was not responsible for the total loss amount,

according to U.S.S.G. § 1B1.3, because he joined several months after the inception of the

conspiracy. 129 F.3d at 1213. But even though U.S.S.G. § 1B1.3 forbids holding a defendant

responsible for relevant conduct of others that occurred before her entry into the conspiracy,

Word is distinguishable because the district court here attributed Lahr’s pre-conspiracy tax

liability from 1996 to 2000 to Demer based on her own conduct during the conspiracy and the

4
that she should not be held accountable for the tax liability accrued from the tax

year of 2001, the district court did not plainly err because the district court properly

held that Demer entered the conspiracy in January 2002, and helped Lahr evade his

tax liability for the 2001 tax year. Raad, 406 F.3d at 1323.

Next, we find no merit in Demer’s argument that the district court clearly

erred in failing to grant her a minor-role reduction under U.S.S.G. § 3B1.2(b).

Under U.S.S.G. § 3B1.2, if a defendant was a minor participant in the criminal

activity, then the offense level is decreased by two levels. U.S.S.G. § 3B1.2(b). A

minor participant is a defendant “who is less culpable than most other participants,

but whose role could not be described as minimal.” U.S.S.G. § 3B1.2 comment.

(n.5). A defendant who seeks an adjustment under § 3B1.2 bears the burden of

proving her mitigated role in the offense by a preponderance of the evidence. De

Varon, 175 F.3d at 939. When determining the defendant’s role in the offense, the

district court’s consideration is guided by two principles: (1) the court must

compare the defendant’s role in the offense with the relevant conduct attributed to

her in calculating her offense level; and (2) the court may compare the defendant’s

conduct to that of other participants involved in the offense. Id. at 940-945.

intended financial harm to the IRS. See U.S.S.G. § 1B1.3 comment. (n.2). 

5
The district court’s determination -- that Demer did not play a minor role in

comparison to the relevant conduct for which she was held accountable -- was not

clearly erroneous. Indeed, the district court properly evaluated Demer’s role

against the relevant conduct that was taken into account to determine her base

offense level, by comparing her role against her conduct within the conspiracy and

the loss for which she was held accountable. In addition, the district court

compared Demer’s conduct to that of Lahr’s, and concluded that each coconspirator shared a “coterminus” role in the conspiracy. Further, the record

supports the district court’s findings, as the record shows that Demer: (1)

established warehouse bank accounts from shell entities that she had created for

Lahr to conceal his true income; (2) at Lahr’s direction, used the bank deposits to

purchase assets and pay expenses for him; (3) assisted Lahr with his trust seminars;

and (4) printed five fictitious U.S. bonds from her computer to pay for Lahr’s tax

liability from 1996 to 2000 in the approximate amount of $ 800,000. Accordingly,

since the district court properly compared Demer’s role in the conspiracy with the

relevant conduct that was attributed to her, the district court did not clearly err in

denying her a minor-role adjustment.

2

 Demer’s arguments to the contrary are without merit. First, it is of no moment that 2

Lahr might have played a more integral role than Demer because De Varon makes clear that,

even assuming she was less culpable than him, there are instances where, like here, there are no

minor or minimal participants. 175 F.3d at 944. Second, Demer misplaces her reliance on cases

6
We also reject Demer’s claim that the district court clearly erred in

overruling her objection to a two-level enhancement under U.S.S.G. § 2T1.9(b)(2).

Section 2T1.9(b)(2) of the U.S. Sentencing Guideline provides a two-level

enhancement if the defendant “intended to encourage persons other than or in

addition to co-conspirators to violate the internal revenue laws or impede, impair,

obstruct, or defeat the ascertainment, computation, assessment, or collection of

revenue.” U.S.S.G. § 2T1.9(b)(2).

The district court did not clearly err in applying the enhancement because

Demer did encourage others, in addition to Lahr, to evade taxes and to obstruct the

collection of revenue by the IRS. Specifically, the record shows that Demer helped

an unknown number of clients evade taxes by opening various warehouse bank

accounts based on approximately 30 shell entities that she had created, and she

used those accounts to pay for expenses and purchase assets for her clients.

Furthermore, Demer assisted Lahr with his anti-tax seminars on how to use trusts

to evade taxes. Therefore, the district court did not clearly err in finding that the

standing for the proposition that, if a defendant received a lower offense level because she was

convicted of a significantly less serious offense than her actual criminal conduct, a mitigating

role reduction would not be appropriate. See United States v. Everett, 129 F.3d 1222 (11th Cir.

1997); United States v. Fernandez, 92 F.3d 1121 (11th Cir. 1996). Demer cannot rely on this

principle for support because it does not impart that the opposite is true, i.e, that a mitigating role

is always appropriate when a defendant is held accountable for the entire loss amount, as here.

7
record painted a “clear picture” that Demer actively encouraged, assisted, and

helped others to avoid their tax obligations.

Demer’s arguments on appeal against the § 2T1.9(b)(2) enhancement are

without merit. First, Demer’s factual assertions -- that she merely assisted Lahr

with organizing the seminars and distributed UCC documents there, and that she

arranged “bookkeeping services” to others -- are contradicted by the record, which

shows that Demer was actively involved with Lahr’s trust seminars, and that she

allowed the clients to use her warehouse bank accounts to conceal their income

from the IRS. Also, as for Demer’s argument that the district court made its

findings based solely on her anti-tax beliefs, the district court merely stated that the

evidence painted a “clear picture” that, consistent with Demer’s “clearly-held

belief in that area,” she actively encouraged, assisted, and helped others to avoid

tax liabilities. Nor can Demer rely on Sileven. There, the Eighth Circuit upheld

the applicability of a § 2T1.9(b)(2) enhancement where the defendant helped his

clients evade taxes through his “actions and words,” by accepting transfers of

untaxed cash income and returning the funds in the form of untaxable loan

proceeds for a fee. Sileven, 985 F.2d at 964-65, 970. Similarly, Demer helped her

clients evade taxes in a scheme where she created warehouse bank accounts for

them to deposit untaxed income and paid their expenses from those accounts.

8
Finally, we disagree with Demer that the district court plainly erred in

holding her liable for restitution in the amount of the co-conspirator’s tax liability

from the tax years of 2001 to 2003. The Mandatory Victims Restitution Act

requires a district court to order a defendant to pay restitution where the defendant

is convicted of an offense in which an identifiable victim has suffered a pecuniary

loss. 18 U.S.C. § 3663A(a)(1) and (c)(1)(B).

As an initial matter, since Demer does not contest the restitution amount

assessed for the tax years of 2002 and 2003, she has abandoned any argument as to

those claims. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.

1998) (holding that an issue is abandoned if the defendant fails to proffer argument

on its merits on appeal). As for the restitution amount for the tax year of 2001,

Demer entered the conspiracy in January 2002, and helped Lahr evade his tax

liability for the 2001 tax year. Therefore, Demer was not ordered to pay restitution

for losses predating her entry into the conspiracy, and the district court did not err,

much less plainly err. See Raad, 406 F.3d at 1323.

AFFIRMED.

9